THE LAW OF NATIONS
Or The Principles Of Natural Law
IN FOUR BOOKS (1758) By EMMERICH DE VATTEL Translated into English by Joseph Chitty, Esq. (1833) Spelling has been modernized. This electronic edition
© Copyright 2003, 2005 Lonang Institute
(Kingery. [K.] Notes: Spelling is pobably Modernized to 1833 or perhaps 2003.)
(K. Notes: Will appear in this style; indented and usually below the paragraph with which it is associated.)
(K. Notes: This Annotated Work is by Daniel Kingery. Table of Contents and page number will not match previously published works. 2022)
Table of Contents
Preface to 1852 Edition 1
Advertisement to The 1797 Edition 1
Preface to The 1797 Edition 1
Preface to The 1833 Edition 1
1758 Preface (by Vattel) 1
Preliminaries: Idea and General Principles of the Law of Nations 1
§ 1. What is meant by a nation or state. 1
§ 2. It is a moral person. 2
§ 3. Definition of the law of nations. 2
§ 4. In what light nations or states are to be considered. 2
§ 5. To what laws nations are subject. 2
§ 6. In what the law of nations originally consists. 2
§ 7. Definition of the necessary law of nations. 2
§ 8. It is immutable. 2
§ 9. Nations can make no change in it, nor dispense with the obligations arising from it. 2
§ 10. Society established by nature between all mankind. 2
§ 11. And between all nations. 2
§ 12. The object of this society of nations. 2
§ 13. General obligation imposed by it. 2
§ 14. Explanation of this observation. 2
§ 15. The second general law is the liberty and independence of nations.
§ 16. Effect of that liberty.
§ 17. Distinctions between internal and external, perfect and imperfect obligations and rights.
§ 18. Equality of nations.
§ 19. Effect of that equality.
§ 20. Each nation is mistress of her own actions, when they do not affect the perfect rights of others.
§ 21. Foundation of the voluntary law of nations.
§ 22. Right of nations against the infractors of the law of nations.
§ 23. Measure of that right.
§ 24. Conventional law of nations, or law of treaties.
§ 25. Customary law of nations.
§ 26. General rule respecting that law.
§ 27. Positive law of nations.
§ 28. General maxim respecting the use of the necessary and the voluntary law.
BOOK 1: Of Nations Considered in Themselves
CHAPTER 1: Of Nations or Sovereign States 2
§ 1. Of the state, and of sovereignty 2
§ 2. Authority of the body politic over the members. 2
§ 3. Of the several kinds of government. 2
§ 4. What are sovereign states. 2
§ 5. States bound by unequal alliance. 2
§ 6. Or by treaties of protection. 2
§ 7. Of tributary states. 2
§ 8. Of feudatory states. 2
§ 9. Of two states subject to the same prince. 2
§ 10. Of states forming a federal republic. 2
§ 11. Of a state that has passed under the dominion of another. 2
§ 12. The objects of this treatise. 2
CHAPTER 2: General Principles of the Duties of a Nation Towards Itself 2
§ 13. A nation ought to act agreeably to its nature. 2
§ 14. Of the preservation and perfection of a nation. 2
§ 15. What is the end of civil society. 2
§ 16. A nation is under an obligation to preserve itself. 2
§ 17. And to preserve its members. 2
§ 18. A nation has a right to every thing necessary for its preservation. 2
§ 19. It ought to avoid every thing that might occasion its destruction. 2
§ 20. Of its right to every thing that may promote this end. 2
§ 21. A nation ought to perfect itself and the state. 2
§ 22. And to avoid every thing contrary to its perfection. 2
§ 23. The rights it derives from these obligations. 2
§ 24. Examples. 2
§ 25. A nation ought to know itself. 2
CHAPTER 3: Of the Constitution of a State, and the Duties and Rights of the Nation in this Respect 2
§ 26. Of public authority. 2
§ 27. What is the constitution of a state. 2
§ 28. The nation ought to choose the best constitution. 2
§ 29. Of political, fundamental, and civil laws. 2
§ 30. Of the support of the constitution and obedience to the laws. 3
§ 31. The rights of a nation with respect to its constitution and government. 3
§ 32. It may reform the government. 3
§ 33. And may change the constitution. 3
§ 34. Of the legislative power, and whether it can change the constitution. 3
§ 35. The nation ought not to attempt it without great caution. 3
§ 36. It is the judge of all disputes relating to the government. 3
§ 37. No foreign power has a right to interfere. 3
CHAPTER 4: Of the Sovereign, His Obligations, and His Rights 3
§ 38. Of the sovereign. 3
§ 39. It is solely established for the safety and advantage of society. 3
§ 40. Of his representative character. 3
§ 41. He is intrusted with the obligations of the nation, and invested with its rights. 3
§ 42 His duty with respect to the preservation and perfection of the nation. 3
§ 43. His rights in this respect. 3
§ 44. He ought to know the nation. 3
§ 45. The extent of his power. Prerogatives of majesty. 3
§ 46. The prince ought to respect and support the fundamental laws. 3
§ 47. He may change the laws not fundamental. 3
§ 48. He ought to maintain and observe the existing laws. 3
§ 49. In what sense he is subject to the laws. 3
§ 50. His person is sacred and inviolable. 3
§ 51. But the nation may curb a tyrant, and withdraw itself from his obedience. 3
§ 52. Arbitration between the king and his subjects. 3
§ 53. The obedience which subjects owe to a sovereign. 3
§ 54. In what cases they may resist him. 3
§ 55. Of ministers. 3
CHAPTER 5: Of States Elective, Successive or Hereditary, and of Those Called Patrimonial 3
§ 56 Of elective states. 3
CHAPTER 6: Principal Objects of a Good Government; and First to Provide for the Necessities of the Nation 4
§ 72. The object of society points out the duties of the sovereign. 4
CHAPTER 7: Of The Cultivation of The Soil 4
§ 77. The utility of tillage. 4
CHAPTER 8: Of Commerce 4
§ 83. Of home and foreign trade. 4
CHAPTER 9: Of the Care of the Public Ways of Communication, and the Right of Toll 4
§ 100. Utility of highways, canals, etc. 4
CHAPTER 10: Of Money and Exchange 4
§ 105. Establishment of money. 4
CHAPTER 11: Second Object of a Good Government, — to Procure the True Happiness of the Nation 4
§ 110. A nation ought to labor after its own happiness. 4
CHAPTER 12: Of Piety and Religion 5
§ 125. Of piety. 5
CHAPTER 13: Of Justice And Polity 6
§ 158. A nation ought to make justice reign. 6
CHAPTER 14: The Third Object of a Good Government, — To Fortify Itself Against External Attacks
§ 177. A nation ought to fortify itself against external attacks. 6
CHAPTER 15: Of the Glory of a Nation 6
§ 186. Advantages of glory. 6
CHAPTER 16: Of the Protection Sought by a Nation, and Its Voluntary Submission to a Foreign Power 6
§ 192. Protection. 6
CHAPTER 17: How a Nation May Separate Itself from the State of Which it Is a Member, or Renounce its Allegiance to its Sovereign When it Is Not Protected 6
§ 200. Difference between the present case and those in the preceding chapter. 6
CHAPTER 18: Of the Establishment of a Nation in a Country 6
§ 203. Possession of a country by a nation. 6
CHAPTER 19: Of Our Native Country, and Several Things That Relate to It 7
§ 211. What is our country. 7
CHAPTER 20: Of Public, Common, and Private Property 7
§ 234. What the Romans called res communes. 7
CHAPTER 21: Of the Alienation of the Public Property, or the Domain, and That of a Part of the State 7
§ 257. The nation may alienate its public property. 7
CHAPTER 22: Of Rivers Streams, and Lakes 8
§ 266. A river that separates two territories. 8
CHAPTER 23: Of the Sea 8
§ 279. The sea, and its use. 8
BOOK 2: Of a Nation Considered in its Relation to Others 8
CHAPTER 1: Of the Common Duties of a Nation Towards Others; Or, of the Offices of Humanity Between Nations 8
§ 1. Foundation of the common and mutual duties of nations. 8
CHAPTER 2: Of the Mutual Commerce Between Nations 9
§ 21. General obligation of nations to carry on mutual commerce. 9
CHAPTER 3: Of the Dignity and Equality of Nations — of Titles and Other Marks of Honor 9
§ 35. Dignity of nations or sovereign states. 9
CHAPTER 4: Of The Right to Security, And The Effects of The Sovereignty And Independence of Nations 9
§ 49. Right to security. 9
CHAPTER 5: Of the Observance of Justice Between Nations 9
§ 63. Necessity of the observance of justice in human society. 9
CHAPTER 6: Of the Concern a Nation May Have in the Actions of Her Citizens 10
§ 71. The sovereign ought to revenge the injuries of the state, and to protect the citizens. 10
CHAPTER 7: Effects of the Domain Between Nations 10
§ 79. General effect of the domain. 10
CHAPTER 8: Rules with Respect to Foreigners 10
§ 99. General idea of the conduct the state ought to observe towards foreigners. 10
CHAPTER 9: Of the Rights Retained by All Nations after the Introduction of Domain and Property 11
§ 116. What are the rights of which men cannot be deprived. 11
CHAPTER 10: How a Nation Is to Use Her Right of Domain, in Order to Discharge Her Duties Towards Other Nations, with Respect to the Innocent Use of Things 11
§ 131. General duty of the proprietor. 11
CHAPTER 11: Of Usucaption and Prescription Among Nations 11
§ 140. Definition of usucaption and prescription. 11
CHAPTER 12: Of Treaties of Alliance, and Other Public Treaties 11
§ 152. Nature of treaties. 11
CHAPTER 13: Of the Dissolution and Renewal of Treaties1 12
§ 198. Expiration of alliances made for a limited time. 12
CHAPTER 14: Of Other Public Conventions, — of Those That Are Made by Subordinate Powers, — Particularly of the Agreement Called in Latin Sponsio, — and of Conventions of Sovereigns with Private Persons 13
§ 206. Conventions made by sovereigns. 13
CHAPTER 15: Of the Faith of Treaties 13
§ 218. What is sacred among nations. 13
CHAPTER 16: Of Securities Given for the Observance of Treaties 13
§ 235. Guaranty. 13
CHAPTER 17: Of the Interpretation of Treaties 14
§ 262. Necessity of establishing rules of interpretation. 14
CHAPTER 18: Of The Mode of Terminating Disputes Between Nations 15
§ 323. General direction on this subject. 15
BOOK 3: Of War 16
CHAPTER 1: Of War, — Its Different Kinds — and the Right of Making War 16
§ 1. Definition of war. 16
CHAPTER 2: Of the Instruments of War, — the Raising of Troops, Etc., — Their Commanders, or the Subordinate Powers in War 16
§ 6. Instruments of war. 16
CHAPTER 3: Of the Just Causes of War 16
§ 24. War never to be undertaken without very cogent reasons. 16
CHAPTER 4: Of the Declaration of War — and of War in Due Form 17
§ 51. Declaration of war. 17
CHAPTER 5: Of the Enemy, and of Things Belonging to the Enemy 17
§ 69. Who is an enemy. 17
CHAPTER 6: Of the Enemy's Allies — of Warlike Associations — of Auxiliaries and Subsidies 17
§ 78. Treaties relative to war. 17
CHAPTER 7: Of Neutrality — and the Passage of Troops Through a Neutral Country 18
§ 103. Neutral nations. 18
CHAPTER 8: Of the Rights of Nations in War, — And, First, of What We Have a Right to Do, and What We Are Allowed to Do to the Enemy's Person, in a Just War 18
§ 136. General principles of the rights against an enemy in a just war. 18
CHAPTER 9: Of the Right of War, with Regard to Things Belonging to the Enemy 19
§ 160. Principles of the right over things belonging to the enemy. 19
CHAPTER 10: Of Faith Between Enemies, — of Stratagems, Artifices in War, Spies, and Some Other Practices 20
§ 174. Faith to be sacred between enemies. 20
CHAPTER 11: Of the Sovereign Who Wages an Unjust War 20
§ 183. An unjust war gives no right whatever. 20
CHAPTER 12: Of the Voluntary Law of Nations, as it Regards the Effects of Regular Warfare, Independently of the Justice of the Cause 20
§ 188. Nations not rigidly to enforce the law of nature against each other 20
CHAPTER 13: Of Acquisitions by War, and Particularly of Conquests 20
§ 193. How war is a method of acquisition. 20
CHAPTER 14: Of the Right of Postliminium 21
§ 204. Definition of the right of postliminium 21
CHAPTER 15: Of the Right of Private Persons in War 21
§ 223. Subjects cannot commit hostilities without the sovereign's order. 21
CHAPTER 16: Of Various Conventions Made During the Course of the War 21
§ 233. Truce and suspension of arms. 21
CHAPTER 17: Of Safe-conducts and Passports, — With Questions on the Ransom of Prisoners of War 22
§ 265. Nature of safe-conducts and passports. 22
CHAPTER 18: Of Civil War 22
§ 287 Foundation of the sovereign's rights against the rebels. 22
BOOK 4: Of the Restoration of Peace; and of Embassies 22
CHAPTER 1: Of Peace, and the Obligation to Cultivate it 22
§ l. What peace is. 22
CHAPTER 2: Treaties of Peace 22
§ 9. Definition of a treaty of peace. 22
CHAPTER 3: Of the Execution of the Treaty of Peace 23
§ 24. When the obligation of the treaty commences. 23
CHAPTER 4: Of the Observance and Breach of the Treaty of Peace 23
§ 35. The treaty of peace binds the nation and successors. 23
CHAPTER 5: Of the Right of Embassy, or the Right of Sending and Receiving Public Ministers 23
§ 55. It is necessary that nations be enabled to treat and communicate together. 23
CHAPTER 6: Of the Several Orders of Public Ministers — Of the Representative Character — and of the Honor Due to Ministers 23
§ 69. Origin of the several orders of public ministers. 23
CHAPTER 7: Of the Rights, Privileges, and Immunities of Ambassadors and Other Public Ministers 24
§ 80. Respect due to public ministers.2 24
CHAPTER 8: Of the Judge of Ambassadors in Civil Cases 25
§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides. 25
CHAPTER 9: Of the Ambassador's House and Domestics 25
§ 117. The ambassador's house.1 25
Preface to 1852 Edition
The text of the present translation of Vattel has been carefully compared with that of the original work, in the first edition which appeared, (Londres, 1758, 2 vol. in quarto,) published at Neufchatel; in that of Amsterdam, (Van Harrevelt, 1775, 2 vol. in quarto,) the best known till recently; and in that of M. de Hoffmans, (Paris, 1839, 2 vol. in octavo,) the last and best edition. Great care has been taken also in regard to the British decisions cited by the English editor. It was discovered, that many inaccuracies existed in the citations, particularly in the names of the cases cited, which have been corrected by references to the original reports of the decisions: and wherever it appeared that the notes of the English editor required additions to render the doctrine advanced in them clearer, or more intelligible, such additions have been made; care having been taken to distinguish the matter added by enclosing it in brackets. The editor regrets very much that the size of the volume — which would have been too much increased by such an extension — did not permit him to annex to it the "Bibliographie choisie et systematique du Droit de la Nature et des Gens, et du Droit Public," of M. de Hoffmans, which is an excellent guide in the choice of Works upon a subject much less attended to than is demanded by its importance.
Philadelphia, Sept. 29,1852.
Advertisement to The 1797 Edition
IN undertaking this new edition of Monsieur De Vattel's treatise, it was not my intention to give what might strictly be called a new translation. To add the author's valuable notes from the posthumous edition, printed at Neufchatel in 1773, — to correct some errors I had observed in the former version, — and occasionally to amend the language where doubtful or obscure, — were the utmost limits of my original plan. As I proceeded, however, my alterations became more numerous; but whether they will be acknowledged as amendments, it must rest with the reader to determine.Even if this decision should be more favorable than I have any reason to expect, I lay no claim to praise for my humble efforts, but shall esteem myself very fortunate if I escape the severity of censure for presenting the work to the public in a state still so far short of perfection. Conscious of its defects, I declare, with great sincerity, — ... Veniam pro laude peto, — laudatus abunde, Non fastiditus si tibi, lector, ero.
London, May 1, 1797.
Preface to The 1797 Edition
THE merits and increasing utility of this admirable work have not, as yet, been sufficiently known, or justly appreciated. It has been generally supposed that it is only adapted for the study of sovereigns and statesmen, and in that view certainly the author's excellent Preface points out its preeminent importance. But it is of infinitely more extended utility. It contains a practical collection of ethics, principles, and rules of conduct to be observed and pursued, as well by private individuals as by states, and these of the utmost practical importance to the well-being, happiness, and ultimate and permanent advantage and benefit of all mankind; and, therefore, ought to be studied by every gentleman of liberal education, and by youth, in whom the best moral principles should be inculcated. The work should be familiar in the Universities, and in every class above the inferior ranks of society. And, as regards lawyers, it contains the clearest rules of construing private contracts, and respecting the Admiralty and Insurance Law. The positions of the author, moreover, have been so sensibly and clearly supported and explained, and so happily illustrated by historical and other interesting examples, that the perusal cannot fail to entertain as well as instruct. The present Editor, therefore, affirms, without the hazard of contradiction, that every one who has attentively read this work, will admit that he has acquired a knowledge of superior sentiments and more important information than he ever derived from any other work.
Preface to The 1833 Edition
Many years have elapsed since the original work was published, long before the invaluable decisions of Sir William Scott, Sir C. Robinson, and Sir John Nichol, and other eminent Judges in the Courts of Admiralty, and Prize and other Courts; and the last edition upon which any care was bestowed, was published in A.D. 1797; since which time, and especially during the last general war, many most important rules respecting the Law of Nations were established. The object of the present Editor has, therefore, been to collect and condense, in numerous notes, the modern rules and decisions, and to fortify the positions in the text by references to other authors of eminence, and by which he hopes that this edition will be found of more practical utility, without interfering with the text, or materially increasing its size.
The Editor had proposed to form an Index, so as to render the work more readily accessible; but, in that desire, he has been overruled by the publishers, who think that the exceedingly full Analytical Table of Contents following the Preface, and naming the pages where each position is to be found, are sufficient, without increasing the bulk of the work, and, consequently, the expense. The Editor hopes that the student who may examine his numerous notes will not think that he has wasted time.
Chambers, 6, Chancery Lane, November, 1833
1758 Preface (by Vattel)
THE Law of Nations, though so noble and important a subject, has not, hitherto, been treated of with all the care it deserves. The greater part of mankind have, therefore, only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors, almost exclusively confine the name of "Law of Nations" to certain maxims and treatises recognized among nations, and which the mutual consent of the parties has rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is, at the same time, a degradation of that law, in consequence of a misconception of its real origin.
(K. Notes: What Vattel says here is equally true of The unanimous Declaration of the thirteen united States of America, especially when we refer to that document as The Declaration of Independence.)
There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various subjects, can no otherwise be made than in a manner agreeable to the nature of each subject. Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns. All treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature, are incapable of conveying a distinct idea, or a substantial knowledge of the sacred law of nations.
(K. Notes: What Vattel states here, especially with the phrase, “Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns” is exactly what Jefferson and contributors to The unanimous Declaration have accomplished. The Declaration is a binding contract among the body-Sovereign, which is the body of the governed people.)
The Romans often confounded the law of nations with the law of nature, giving the name of "the lawof nations" (Jus Gentium) to the law of nature, as being generally acknowledged and adopted by all civilized nations. The definitions given by the emperor Justinian, of the law of nature, the law of nations, and the civil law, are well known. "The law of nature," says he, "is that which nature teaches to all animals": thus he defines the natural law in its most extensive sense, not that natural law which is peculiar to man, and which is derived as well from his rational as from his animal nature. "The civil law," that emperor adds, "is that which each nation has established for herself, and which peculiarly belongs to each state or civil society. And that law, which natural reason has established among all mankind, and which is equally observed by all people, is called the law of nations, as being law which all nations follow. In the succeeding paragraph, the emperor seems to approach nearer to the sense we at present give to that term. "The law of nations," says he, "is common to the whole human race. The exigencies and necessities of mankind have induced all nations to lay down and adopt certain rules of right. For wars have arisen, and produced captivity and servitude, which are contrary to the law of nature; since, by the law of nature, all men were originally born free." But from what he adds, — that almost all kinds of contracts, those of buying and selling, of hire, partnership, trust, and an infinite number of others, owe their origin to that law of nations,— it plainly appears to have been Justinian's idea, that, according to the situations and circumstances in which men were placed, right reason has dictated to them certain maxims of equity, so founded on the nature of things, that they have been universally acknowledged and adopted. Still this is nothing more than the law of nature, which is equally applicable to all mankind.
(K. Notes: The Constitution of the United States of America, and or, The Declaration, refer to The Laws of Nature and The Laws of Nations. This is why it is important to know the differences, if there are any real differences and to practice them, refine then, and live them.)
The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith. The moderns are generally agreed in restricting the appellation of "the law of nations" to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations: and he thus distinguishes it from the law of nature: "When several persons, at different times, and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two — either a just consequence drawn from natural principles, or a universal consent. The former discovers to us the law of nature, and the latter the law of nations."
That great man, as appears from many passages in his excellent work, had a glimpse of the truth: but as he had the task of extracting from the rude ore, as it were, and reducing into regular shape and form, a new and important subject, which had been much neglected before this time, it is not surprising that, having his mind burthened with an immense variety of objects, and with a numberless train of quotations, which formed a part of his plan, he could not always acquire those distinct ideas so necessary in the sciences. Persuaded that nations, or sovereign powers, are subject to the authority of the law of nature, the observance of which he so frequently recommends to them, that learned man, in fact, acknowledged a natural law of nations, which he somewhere calls the internal law of nations: and, perhaps it will appear that the only difference between him and us lies in the terms. But we have already observed, that, in order to form this natural law of nations, it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals. And, besides, Grotius, by his very distinction, and by exclusively appropriating the name of "the law of nations" to those maxims which have been established by the common consent of mankind, seems to intimate that sovereigns, in their transactions with each other, cannot insist on the observance of any but those last-mentioned maxims, reserving the internal law for the direction of their own consciences. If, setting out with the idea that political societies or nations live, with respect to each other, in a reciprocal independence, in the state of nature, and that, as political bodies, they are subject to the natural law, Grotius had, moreover, considered that the law must be applied to these new subjects in a manner suitable to their nature, that judicious author would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will; and that the common consent of mankind is only the foundation and source of a particular kind of law, called the Arbitrary Law of Nations.
(K. Notes: We note that the phrase “and that the common consent of mankind” appears in The Declaration when it refers to where governments get their just powers.)
Hobbes, in whose work we discover the hand of a master, notwithstanding his paradoxes and detestable maxims, — Hobbes was, I believe, the first who gave a distinct, though imperfect idea, of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations. "The maxims," he adds, "of each of these laws are precisely the same: but as states, once established, assume personal properties, that which is termed the natural law, when we speak of the duties of individuals is called the law of nations when applied to whole nations or states." This author has well observed, that the law of nations is the law of nature applied to states or nations. But we shall see, in the course of this work, that he was mistaken in the idea that the law of nature does not suffer any necessary change in that application, an idea, from which he concluded that the maxims of the law of nature and those of the law of nations are precisely the same.
Pufendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes. He has not, therefore, separately treated of the law of nations, but has everywhere blended it with the law of nature, properly so called.
Barbeyrac, who performed the office of translator and commentator to Grotius and Pufendorf, has approached much nearer to the true idea of the law of nations. Though the work is in everybody's hands, I shall here, for the readers' convenience, transcribe one of that learned translator's notes on Grotius's Law of War and Peace. "I acknowledge," says he, "that there are laws common to all nations — things which all nations ought to practice towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But, setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instance — the principles and the rules of such a law are, in fact, the same as these of the law of nature, properly so called; the only difference consisting in the mode of their application, which may be somewhat varied, on account of the difference that sometimes happens in the manner in which nations settle their affairs with each other."
It did not escape the notice of the author we have just quoted, that the rules and decisions of the law of nature cannot be purely and simply applied to sovereign states, and that they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they are applied. But it does not appear that he discovered the full extent of this idea, since he seems not to approve of the mode of treating the law of nations separately from the law of nature as relating to individuals. He only commends Budæus's method, saying, "It was right in that author to point out, after each article of the law of nature, the application which may be made of it to nations in their mutual relations to each other, so far, at least as his plan permitted or required that he should do this," Here Barbeyrac made one step, at least, in the right track: but it required more profound reflection, and more extensive views, in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns, to perceive the utility of such a work, and especially to be the first to execute it.
(K. Notes: It is would hope that Vattel, when writing, “in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns,” would mean that there is a Law to which the state [government] and sovereign must be bound. If this hope is true; The Declaration binds the Sovereign, where The Constitution binds the government - but only when successfully enforced.)
This glory was reserved for the Baron de Wolf. That great philosopher saw that the law of nature could not, with such modifications as the nature of the subjects required, and with sufficient precision, clearness, and solidity, be applied to incorporated nations, or states, without the assistance of those general principles and leading ideas by which the application is to be directed; that it is by those principles alone we are enabled evidently to demonstrate that the decisions of the law of nature, respecting individuals, must, pursuant to the intentions of that very law, be changed and modified in their application to states and political societies, and thus to form a natural and necessary law of nations: whence he concluded, that it was proper to form a distinct system of the law of nations, a task which he has happily executed. But it is just that we should hear what Wolf himself says in his Preface.
"Nations," says he, "do not, in their mutual relations to each other, acknowledge any other law than that which Nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man; and thus the law of nations certainly belongs to the law of nature: it is, therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others.
"But nations or sovereign states being moral persons, and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body, the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to enable him to fulfill his duties, since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus, we see that the law of nations does not, in every particular, remain the same as the law of nature, regulating the actions of individuals. Why may it not, therefore, be separately treated of, as a law peculiar to nations?"
Being myself convinced of the utility of such a work, I impatiently waited for Monsieur Wolf's production, and, as soon as it appeared, formed the design of facilitating, for the advantage of a greater number of readers, the knowledge of the luminous ideas which it contains. The treatise of the philosopher of Hall on the law of nations is dependent on all those of the same author on philosophy and the law of nature. In order to read and understand it, it is necessary to have previously studied sixteen or seventeen quarto volumes which precede it. Besides, it is written in the manner and even in the formal method of geometrical works. These circumstances present obstacles which render it nearly useless to those very persons in whom the knowledge and taste of the true principles of the law of nations are most important and most desirable. At first I thought that I should have had nothing farther to do than to detach this treatise from the entire system, by rendering it independent of every thing Monsieur Wolf had said before, and to give it a new form, more agreeable, and better calculated to insure it a reception in the polite world. With that view, I made some attempts; but I soon found, that if I indulged the expectation of procuring readers among that class of persons for whom I intended to write, and of rendering my efforts beneficial to mankind, it was necessary that I should form a very different work from that which lay before me, and undertake to furnish an original production. The method followed by Monsieur Wolf has had the effect of rendering his work dry, and in many respects incomplete. The different subjects are scattered through it in a manner that is extremely fatiguing to the attention; and, as the author had, in his "Law of Nature," treated of universal public law, he frequently contents himself with a bare reference to his former production, when, in handling the law of nations, he speaks of the duties of a nation towards herself.
From Monsieur Wolf's treatise, therefore, I have only borrowed whatever appeared most worth of attention, especially the definitions and general principles; but I have been careful in selecting what I drew from that source, and have accommodated to my own plan the materials with which he furnished me. Those who have read Monsieur Wolf's treatises on the law of nature and the law of nations, will see what advantage I have made of them. Had I everywhere pointed out what I have borrowed, my pages would be crowded with quotations equally useless and disagreeable to the reader. It is better to acknowledge here, once for all, the obligations I am under to that great master. Although my work be very different from his, (as will appear to those who are willing to take the trouble of making the comparison,) I confess that I should never have had the courage to launch into so extensive a field, if the celebrated philosopher of Hall had not preceded my steps, and held forth a torch to guide me on my way.
Sometimes, however, I have ventured to deviate from the path which he had pointed out, and adopted sentiments opposite to his.
I will here quote a few instances. Monsieur Wolf, influenced, perhaps, by the example of numerous other writers, has devoted several sections to the express purpose of treating of the nature of patrimonial kingdoms, without rejecting or rectifying that idea so degrading to human kind. I do not even admit of such a denomination, which I think equally shocking, improper, and dangerous, both in its effects, and in the impressions it may give to sovereigns: and in this, I flatter myself I shall obtain the suffrage of every man who possesses the smallest spark of reason and sentiment, in short, of every true citizen.
Monsieur Wolf determines (Jus Gent. § 878) that it is naturally lawful to make use of poisoned weapons in war. I am shocked at such a decision, and sorry to find it in the work of so great a man. Happily for the human race, it is not difficult to prove the contrary, even from Monsieur Wolf's own principles. What I have said on this subject may be seen in Book 3, § 156.
In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations which we call voluntary. Monsieur Wolf deduces it from the idea of a great republic (civitatis maximæ) instituted by nature herself, and of which all nations of the world are members. According to him, the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations, which shall necessarily claim the obedient acquiescence of sovereign states. I acknowledge no other natural society between nations than that which nature has established between mankind in general. It is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey. Nothing of this kind can be conceived or supposed to subsist between nations. Each sovereign state claims, and actually possesses an absolute independence on all the others. They are all, according to Monsieur Wolf himself, to be considered as so many individuals who live together in the state of nature, and who acknowledge no other laws but those of nature, or of her Great Author. Now, although nature has indeed established a general society between mankind, by creating them subject to such wants as rendering assistance of their fellow creatures indispensably necessary to enable them to live in a manner suitable to men, yet she has not imposed on them any particular obligation to unite in civil society, properly so called: and if they all obeyed the injunctions of that good parent, their subjection to the restraints of civil society would be unnecessary. It is true, that as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had recourse to a political association, as the only adequate remedy against the depravity of the majority the only means of securing the condition of the good, and repressing the wicked: and the law of nature itself approves of this establishment. But it is easy to perceive that the civic association is very far from being equally necessary between nations, as it was between individuals. We cannot, therefore, say, that nature equally recommends it, much less that she has prescribed it. Individuals are so constituted, and are capable of doing so little by themselves, that they can scarcely subsist without the aid and the laws of civil society. But, as soon as a considerable number of them have united under this same government, they become able to supply most of their wants; and the assistance of other political societies is not so necessary to them as that of individuals is to an individual. These societies have still, it is true, powerful motives for carrying on a communication and commerce with each other; and it is even their duty to do it; since no man can, without good reasons, refuse assistance to another man. But the law of nature may suffice to regulate this commerce, and this correspondence. States conduct themselves in a different manner from individuals. It is not usually the caprice or blind impetuosity of a single person that forms the resolutions and determines the measures of the public: they are carried on with more deliberation and circumspection; and, on difficult or important occasions, arrangements are made and regulations established by means of treaties. To this we may add, that independence is even necessary to each state, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances. It is, therefore, sufficient (as I have already said) that nations should conform to what is required of them by the natural and general society established between all mankind.
(K. Notes: This statement,”It is essential to every civil society [civitati] that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey.” This near-perfectly details the relationship between The Declaration and The Constitution with respect to how our society, our nation and its government are supposed to function together.)
But, says Monsieur Wolf, a rigid adherence to the law of nature cannot always prevail in that commerce and society of nations; it must undergo various modifications, which can only be deduced from this idea of a kind of great republic of nations, whose laws, dictated by sound reason, and founded on necessity, shall regulate the alterations to be made in the natural and necessary law of nations, as the civil laws of a particular state determine what modifications shall take place in the natural law of individuals. I do not perceive the necessity of this consequence; and I flatter myself that I shall, in the course of this work, be able to prove, that all the modifications, all the restrictions, — in a word, all the alterations which the rigor of the natural law must be made to undergo in the affairs of nations, and from which the voluntary law of nations is formed, — to prove, I say, that all these alterations are deducible from the natural liberty of nations, from the attention due to their common safely, from the nature of their mutual correspondence, their reciprocal duties, and the distinctions of their various rights, internal and external, perfect and imperfect, — by a mode of reasoning nearly similar to that which Monsieur Wolf has pursued, with respect to individuals, in his treatise on the law of nature.
In that treatise it is made to appear that the rules which, in consequence of the natural liberty of mankind, must be admitted in questions of external right, do not cancel the obligation which the internal right imposes on the conscience of each individual. It is easy to apply this doctrine to nations, and, by carefully drawing the line of distinction between the internal and external right — between the necessary and the voluntary law of nations — to teach them not to indulge themselves in the commission of every act which they may do with impunity, unless it be approved by the immutable laws of justice and the voice of conscience.
Since nations, in their transactions with each other, are equally bound to admit those exceptions to, and those modifications of, the rigor of the necessary law, whether they be deduced from the idea of a great republic of which all nations are supposed to be the members, or derived from the source from whence I propose to draw them, — there can be no reason why the system which thence results should not be called the Voluntary Law of nations, in contradistinction to the necessary, internal, and consciential law. Names are of very little consequence: but it is of considerable importance carefully to distinguish these two kinds of law, in order that we may never confound what is just and good in itself, with what is only tolerated through necessity.
The necessary and the voluntary laws of nations are therefore both established by nature, but each in a different manner: the former, as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other. The necessary law immediately proceeds from nature; and that common mother of mankind recommends the observance of the voluntary law of nations, in consideration of the state in which nations stand with respect to each other, and for the advantage of their affairs. This double law, founded on certain and invariable principles, is susceptible of demonstration, and will constitute the principal subject of this work.
There is another kind of law of nations, which authors call arbitrary, because it proceeds from the will or consent of nations. States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compact and treaties; hence results a conventional law of nations, peculiar to the contracting powers. Nations may also bind themselves by their tacit consent: upon this ground rest all those regulations which custom has introduced between different states, and which constitute the wage of nations, or the law of nations founded on custom. It is evident that this law cannot impose any obligation except on those particular nations who have, by long use, given their sanction to its maxims: it is a peculiar law, and limited in its operations, as the conventional law; both the one and the other derive all their obligatory force from that maxim of the natural law which makes it the duty of nations to fulfill their engagements, whether express or tacit. The same maxim ought to regulate the conduct of states with regard to the treaties they conclude and the customs they adopt. I must content myself with simply laying down the general rules and principles which the law of nature furnishes for the direction of sovereigns in this respect. A particular detail of the various treaties and customs of different states belongs to history, and not to a systematic treatise on the law of nations.
(K. Notes: This statement, “There is another kind of law of nations, which authors call arbitrary, because it proceeds from the will or consent of nations. States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compact and treaties; hence results a conventional law of nations, peculiar to the contracting powers.” This is The Declaration. It is a compact, a law between and among all united States Americans.)
Such a treatise ought, as we have already observed, principally to consist in a judicious and rational application of the principles of the law of nature to the affairs and conduct of nations and sovereigns. The study of the law of nations supposes therefore a previous knowledge of the ordinary law of nature; and, in fact, I proceed on the supposition that my readers are already, to a certain degree at least, possessed of that knowledge. Nevertheless, as it is not agreeable to readers in general to be obliged to recur to other authorities for proofs of what an author advances, I have taken care to establish, in a few words, the most important of those principles of the law of nature which I intend to apply to nations. But I have not always thought it necessary to trace them to their primary foundations for the purpose of demonstration, but have sometimes contented myself with supporting them by common truths which are acknowledged by every candid reader, without carrying the analysis any farther. It is sufficient for me to persuade, and for this purpose to advance nothing as a principle that will not readily be admitted by every sensible man.
The law of nations is the law of sovereigns. It is principally for them, and for their ministers, that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen; but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures. If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations! We every day feel the advantages of a good body of laws in civil society: — the law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons.
(K. Notes: This statement, “The law of nations is the law of sovereigns. It is principally for them, and for their ministers, that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen; but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures” details The Declarations as a law among sovereigns, and The Constitution as the law by the sovereigns to guide their ministers in government.)
But fatal experience too plainly proves how little regard those who are at the head of affairs pay to the dictates of justice, in conjunctures where they hope to find their advantage. Satisfied with bestowing their attention on a system of politics which is often false, since often unjust, the generality of them think they have done enough when they have thoroughly studied that. Nevertheless, we may truly apply to states a maxim which has long been acknowledged as true with respect to individuals, — that the best and safest policy is that which is founded on virtue. Cicero, as a great master in the art of government as in eloquence and philosophy, does not content himself with rejecting the vulgar maxim, that "a state cannot be happily governed without committing injustice;" he even proceeds so far as to lay down the very reverse of the proposition as an invariable truth, and maintains, that "without a strict attention to the most rigid justice, public affairs cannot be advantageously administered."
Providence occasionally bestows on the world kings and ministers whose minds are impressed with this great truth. Let us not renounce the pleasing hope that the number of those wise conductors of nations will one day be multiplied; and in the interim let us, each in his own sphere, exert our best efforts to accelerate the happy period.
It is principally with a view of rendering my work palatable to those by whom it is of the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friends of the human race, and who alone ought to be admitted into the councils of kings. But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader's mind, or to render the doctrine more impressive by an example, and sometimes to show that the practice of nations is conformable to the principles laid down: and, whenever I found a convenient opportunity, I have, above all things, endeavored to inspire a love of virtue, by showing, from striking passage of history, how amiable it is, how worthy of our homage in some truly great men, and even productive of solid advantage. I have quoted the chief part of my examples from modern history, as well because these are more interesting, as to avoid a repetition of those which have been already accumulated by Grotius, Pufendorf, and their commentators.
As to the rest, I have, both in these examples and in my reasonings studiously endeavored to avoid giving offense; it being my intention religiously to observe the respect due to nations and sovereign powers: but I have made it a still more sacred rule to respect the truth, and the interests of the human race. If among the base flatterers of despotic power, my principles meet with opponents, I shall have on my side the virtuous man, the friend of the laws, the man of probity, and the true citizen.
I should prefer the alternative of total silence, were I not at liberty in my writings to obey the dictates of my conscience. By my pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations. These favorable circumstances have encouraged me in the attempt to render myself useful to mankind by this work. I felt conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task; but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labors the traces of the honest man and the good citizen.
(K. Notes: This phrase, “readers whose opinions are entitled to respect”, though worded differently, is common in The Declaration, which states "a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.")
Preliminaries: Idea and General Principles of the Law of Nations
§ 1. What is meant by a nation or state.
NATIONS or states are bodies politic, societies of men united together for the purpose of promoting their mutual safely and advantage by the joint efforts of their combined strength.
(K. Notes: This idea shows in The Declaration with these words. First: their mutual advantage; "-That whenever any Form of Government becomes destructive of these ends [security of the peoples' rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Then: the joint efforts of their combined strength, The Declaration ends with this pledge: "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.")
§ 2. It is a moral person.
Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.
(K. Notes: We see this concept at the end of the second to last paragraph of The Declaration, "We [the people of the united States] must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them [the people of Great Britain], as we hold the rest of mankind, Enemies in War, in Peace Friends."
The statement is made as though the people of each respective body [the united States, and those of Great Britain] two distinct moral persons and the rest of mankind is a distinct third moral person.)
§ 3. Definition of the law of nations.
To establish on a solid foundation the obligations and rights of nations, is the design of this work. The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.
(K. Notes: In these united States of America, many a citizens can tell you what rights they possess, but are short on being as able to speak of the rights that other people possess. This demonstrates a lack of obligations that come with each right.
As an example; the right of freedom of speech is often cited by an individual who is yelling or cranking the volume of a loud speaker to its maximum during any hour of the day or night. Yet these people ignore the obligations to respect the other people who would rather not have to fight the noise while they try to sleep or focus on other tasks.
Yes. The person does have the right to speak; but they have the obligation to keep the volume to only the point that their immediate audience [being those people who gathered in close to listen] can hear. It is not their right to boost the volume so that every living being within the sound of the excess volume might hear, though some city-blocks away.)
In this treatise it will appear, in what manner States, as such, ought to regulate all their actions. We shall examine the obligations of a people as well towards themselves as towards other nations; and by that means we shall discover the Rights which result from these obligations. For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty — it is evident that right is derived from duty, or passive obligation, — the obligation we lie under to act in such or such manner. It is therefore necessary that a Nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations.
(K. Notes: This phrase, about what are rights, is a good start. “For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty — it is evident that right is derived from duty, or passive obligation”
A right – is an action.; a doing. Not just any doing; but moral actions that are consistent with ones duty. But who is to dictate to another, what is a moral possibility?
It is the phrase "what is proper and consistent with duty — it is evident that right is derived from duty, or passive obligation" that connects the action to the duty that makes the action moral.
If you possess some thing that I desire; my desire does not make it moral for me to remove it from your possession, without your consent. However, if you are using that item to harm myself or my property; it becomes my duty to remove it from your possession in order to stop the harm, especially when circumstances do not allow bringing the case before a jury. When contest arises because of the taking; it is necessary that both parties detail their actions before an impartial body to determine which action was necessary, as it pertains to keeping the social order.)
§ 4. In what light nations or states are to be considered.
Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, — Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature. It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a State, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all other men, and all other Nations, as long as it has not voluntarily submitted to them.
(K. Notes: In this paragraph we see two seemingly conflicting thoughts. The one thought is that the individuals are not to be deprived of any of their liberty or independence, without first having agreed to that limitation.
The other thought is that individuals partially surrender these to the sovereign, but does not identify that sovereign entity.
If these thoughts are not in conflict, we must recognize that The Sovereign is the collective body of citizens. For the Sovereign to act, it must do so as a unified body where, at the very least, a simple majority (at least one more than 50% of the total number) is required. Without that majority, the body is not morally able to act, by granting to its government certain powers to regulate the rights, lives, and property of the general society.
Without a formal contract among all members of that society that binds all members concerning what powers the majority may of right grant to government; a simple majority of 50% of the total + 1 can unjustly take from others who have done no wrongs and have harmed no others or their property.
This is where The Declaration solves this unjust taking by society against honorable individuals. The Declaration states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"...
With that statement, the only powers that the majority may of right grant to government are only those powers requires to equally secure every person's rights; as every person possesses the exact same list of rights, each individual will select different rights or actions to exercise. Of those who select some of the same rights from the list, each may place different value levels as to how far they are willing to go to defend that right.
NO government or any of its officers can rightly be considered the sovereign; though they are supposed to act under the direction of The Sovereign, which is the governed body, acting in the majority and in accord with the terms of their social contract [hopefully a written contract].)
§ 5. To what laws nations are subject.
As men are subject to the laws of nature, — and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, — the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties.
(K. Notes: This is important to keep fixed firmly in mind; “ — the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature”.
Be careful about this last half of the paragraph: "And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties." It is this last part that indicates that simply because any individual may of right take a certain action in a given situation, that the government may of right do so without first seeking the authority of the society.
This is where the written Declaration of the united States clarifies this issue. It states: "Governments are instituted among Men, deriving their just powers from the consent of the governed". With that statement, the government must first get the governed people to consent or grant that power to the government or to a specific government officer.)
§ 6. In what the law of nations originally consists.
We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently, the law of Nations is originally no other than the law of Nature applied to Nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race; from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights: since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of Nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of Nations a distinct science.
§ 7. Definition of the necessary law of nations.
We call that the Necessary Law of Nations which consists in the application of the law of nature to Nations. It is Necessary because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the Internal law of Nations, on account of its being obligatory on nations in point of conscience. Several writers term it the Natural law of Nations.
§ 8. It is immutable.
Since therefore the necessary law of nations consists in the application of the law of nature to states, — which law is immutable, as being founded on the nature of things, and particularly on the nature of man, — it follows that the Necessary law of nations is immutable.
§ 9. Nations can make no change in it, nor dispense with the obligations arising from it.
Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.
(K. Notes: If the nation, which is the body of people, cannot release each other from The Laws of Nature: Why then do government officers, who get their power from the governed people act as though they can release themselves and those they choose from the Laws of Nature by acting contrary to the Constitutions that the people created to control the same government officers?)
This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.
There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the Necessary law of nations is unlawful. It will appear, however, in the sequel that it is only by the Internal law, by the law of Conscience, such conventions or treaties are always condemned as unlawful, and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent, though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions; an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.
(K. Notes: "Nations being free and independent, though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions; an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others."
Yet, that is exactly the actions taken by the United Nations; the world police; involving themselves in the domestic affairs of nations considered to be less than desirable." This is also resolved in The Declaration's statement, "and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends."
The Declaration's statement literally makes it off limits to our government, any powers that might interfere with the lives of those in other nations; so long as those other governments are not unjustly violating the rights of our own people. This action may seem unethical; but we must remember that the people of any country possess the right to suffer under any government that have not or refuse to unify in order to correct it.)
§ 10. Society established by nature between all mankind.
Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow-creatures, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. We have instances of persons, who, having grown up to manhood among the bears of the forest, enjoyed not the use of speech or of reason, but were, like the brute beasts, possessed only of sensitive faculties. We see moreover that nature has refused to bestow on men the same strength and natural weapons of defense with which she has furnished other animals — having, in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge; and having thus become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover, is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since, therefore, nature has thus formed mankind, it is a convincing proof of her intention that they should communicate with, and mutually aid and assist each other.
(K. Notes: This statement, " endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge;" indicates that the others beasts on the planet cannot or do not talk with each other – simply because we do not properly comprehend their language or forms of communications — yet.)
Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself: a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common Creator — a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the general obligation that binds us to the observance of our duties: let us fulfill them with care, if we would wisely endeavor to promote our own advantage.
(K. Notes: This, "The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself:" tends to indicate that if I have two cars and you have none, but seem to need on; I should give to you one of the cars I possess. After all, I can only drive one at a time.)
It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that we have just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. Let us therefore endeavor to promote the general happiness of mankind; all mankind, in return, will endeavor to promote ours, and thus we shall establish our felicity on the most solid foundations.
(K. Notes: Though a feel-good idea; it seldom does the other person good to provide to them some "need" that they have not yet earned. In fact, it weakens them into a continued dependency. We see this throughout nature and humans. Helping the bird or butterfly free themselves from their entrapment weakens them to the point of quickly dying for inability to fend for themselves.)
§ 11. And between all nations.
The universal society of the human race being an institution of nature herself, that is to say, a necessary consequence of the nature of man, — all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties. They cannot liberate themselves from the obligation by any convention, by any private association. When, therefore, the unit in civil society for the purpose of forming a separate state or nation, they may indeed enter into particular engagements towards those with whom they associate themselves; but they remain still bound to the performance of their duties towards the rest of mankind. All the difference consists in this, that having agreed to act in common, and having resigned their rights and submitted their will to the body of the society, in every thing that concerns their common welfare, it thenceforward belongs to that body, that state, and its rulers, to fulfill the duties of humanity towards strangers, in every thing that no longer depends on the liberty of individuals; and it is the state more particularly that is to perform those duties towards other states. We have already seen, (§ 5), that men united in society remain subject to the obligations imposed upon them by human nature. That society, considered as a moral person, since possessed of an understanding, volition, and strength peculiar to itself, is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men, that is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects.
§ 12. The object of this society of nations.
Since the object of the natural society established between all mankind is — that they should lend each other mutual assistance, in order to attain perfection themselves, and to render their condition as perfect as possible, — and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other, — the object of the great society established by nature between all nations is also the interchange of mutual assistance for their own improvement, and that of their condition.
§ 13. General obligation imposed by it.
The first general law that we discover in the very object of the society of nations, is that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others.
(K. Notes: This supposed law is not seen much in nature; nor should it be so expected. "[E]ach individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others" would be to say; in accord with Vattel, that every individual person within a nation is supposed to contribute every thing in their power to the happiness and perfections of all others within that nation.
In so doing, the entire nation will become miserable. If you are to contribute every thing in your power to make me happy; you do have it in your power to give to me every thing that you possess, so that I might be happy.
But then... what about your happiness?
You can quickly see the problem developing.
This law, if you will; would be that every individual, if so inclined to help another, with the excess of their own resources, may do so until they decide otherwise.
The person who claims such a need, or even appears to truly be in need, should not expect any or everyone to contribute to his happiness. An individual's happiness can only be satisfied by that individuals own pursuits and not by the pursuits of others.)
§ 14. Explanation of this observation.
But the duties that we owe to ourselves being unquestionably paramount to those we owe to others, — a nation owes herself in the first instance, and in preference to all other nations, to do every thing she can to promote her own happiness and perfection. (I say every thing she can, not only in a physical but in a moral sense, — that is, every thing that she can do lawfully, and consistently with justice and honor.) When, therefore, she cannot contribute to the welfare of another nation without doing an essential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under a disability to perform the office in question.
(K. Notes: It might have been better for Vattel to combine sections §13 & §14, thus stating §14 first, as it is a condition against §13.)
§ 15. The second general law is the liberty and independence of nations.
Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected. No nation is willing to renounce her liberty; she will rather break off all commerce with those stales that should attempt to infringe upon it.
(K. Notes: This is a curious statement, and slightly incorrect. "the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature".
Society does not inherit its enjoyment of liberty from nature; the individual enjoys that inheritance. The society attains or enjoys certain specific liberties or powers that the majority may of right grant to the society [city, county, state, nation] to exercise on behalf of the individuals.)
§ 16. Effect of that liberty.
As a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes to her, — of what she can or cannot do, — of what it is proper or improper for her to do: and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty which she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such particular manner: for any attempt at such compulsion would be an infringement on the liberty of nations. We have no right to use constraint against a free person, except in those cases where such person is bound to perform some particular thing for us, and for some particular reason which does not depend on his judgment, — in those cases, in short, where we have a perfect right against him.
(K. Notes: It must be clear that the nation [the government created to act on behalf of the citizens] has absolutely no authority to do as it "things proper" without first obtaining the lawful authority from the citizens to act in that manner; either towards its own people or towards other nations.)
§ 17. Distinctions between internal and external, perfect and imperfect obligations and rights.
In order perfectly to understand this, it is necessary to observe, that the obligation, and the right which corresponds to or is derived from it, are distinguished into external and internal. The obligation is internal, as it binds the conscience, and is deduced from the rules of our duty: it is external, as it is considered relatively to other men, and produces some right between them. The internal obligation is always the same in its nature, though it varies in degree; but the external obligation is divided into perfect and imperfect; and the right that results from it is also perfect or imperfect. The perfect right is that which is accompanied by the right of compelling those who refuse to fulfill the correspondent obligation; the imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion; the imperfect gives him only a right to ask.
(K. Notes: When it comes to government, especially concerning these uniterd States of America; The perfect right of government only comes when the governed people have granted to the government specific powers, via the majority of the total body of registered voters — BUT only so long as those powers work towards the equal security of every person's rights.
This would be in accord with The Declaration's statement, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.")
It is now easy to conceive why the right is always imperfect, when the correspondent obligation depends on the judgment of the party in whose breast it exists; for if, in such a case, we had a right to compel him, he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. Our obligation is always imperfect with respect to other people, while we possess the liberty of judging how we are to act: and we retain that liberty on all occasions where we ought to be free.
§ 18. Equality of nations.
Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature — Nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.
(K. Notes: Since Vattel is intent on driving this point again: "Nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights." The counter point must also be driven. Nations, being the collective body of people, acting as a single body [hence as a government] do not automatically "inherit" the same rights or level of perfection of those rights that the individuals may otherwise possess when acting as individuals.
The nation, especially these united States of America, can only honorably act in accord with the terms of The Constitution — but only when those terms do not violate the terms within The Declaration concerning the grant of such powers.)
§ 19. Effect of that equality.
By a necessary consequence of that equality, whatever is lawful for one nation is equally lawful for any other; and whatever is unjustifiable in the one is equally so in the other.
(K. Notes: This would generally be true of the external exercise; but not for the internal exercise.
The people of one nation may determine that the equal protection of their rights may be done by granting this power; while the people of another nation may think proper to grant a quite different power.)
§ 20. Each nation is mistress of her own actions, when they do not affect the perfect rights of others.
A nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation — so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her.
(K. Notes: See §19 K. Note.)
§ 21. Foundation of the voluntary law of nations.
Since nations are free, independent, and equal — and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfill her duties the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation may be done by any other; and they ought, in human society, to be considered as possessing equal rights.
(K. Notes: This concept, "Since nations are free, independent, and equal — and since each possesses the right of judging, according to the dictates of her conscience" appears in The Declaration as, "and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.")
Each nation in fact maintains that she has justice on her side in every dispute that happens to arise; and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience; but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society.
(K. Notes: Regarding this thought, "Each nation in fact maintains that she has justice on her side in every dispute that happens to arise;" Nation, being government, specific to these united States of America cannot claim such a position, unless The Constitution specifically grants to government such power in that regard.)
It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable, because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it constitute what Monsieur Wolf calls "The voluntary law of nations"; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law.
§ 22. Right of nations against the infractors of the law of nations.
The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquility, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation. Not all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which Nature has established between them, or who directly attacks the welfare and safety of that society.
(K. Notes: This clause, "the welfare and safety of that society" is seen in The Declaration as, "most likely to effect their Safety and Happiness"; and in The Constitution's Preamble as, "provide for the common defence, promote the general Welfare". None of which speaks to the individual welfare, safety, happiness, or defense.
However, it the welfare, safety, happiness, or defense of society, in general, is well maintained, the individual standing in those respects is far better than if the condition of the general society was in total disrepair.)
§ 23. Measure of that right.
But care must be taken not to extend that right to the prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which Nature has established between them; and so far bound, that, when any of them violates those laws, the others have a right to repress her. The conduct of each nation, therefore, is no further subject to the control of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.
(K. Notes: The phrase, "and so far bound, that, when any of them violates those laws, the others have a right to repress her" might better explain why these united States got involved in the Hitler World War than any other explanation. As Hitler advanced his conquering into other nations against their will, it became an urgent matter for those nations not yet involved to com to the aid of those presently under his attack.
However, had Hitler restrained his assaults to within his own nation; foreign nations would have less right to step in to stop him. The exception to this, would be similar to that of the newly formed united States of America in 1776. Once formed into a separate and independent body; organized to have leaders negotiate and contract on behalf of the society citizens --then, that newly formed nation may of right request the aid of other nations to help her defend her people.)
§ 24. Conventional law of nations, or law of treaties.
The several engagements into which nations may enter produce a new kind of law of nations, called Conventional, or of Treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject, in a treatise on the Law of Nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history.
§ 25. Customary law of nations.
Certain maxims and customs, consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the Customary Law of Nations, or the Custom of Nations. This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations, that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it; that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance; and with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful.
§ 26. General rule respecting that law.
When a custom or usage is generally established, either between all the civilized nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other; if that custom is in its own nature indifferent, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains any thing unjust or unlawful, it is not obligatory; on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorize her to violate the law of nature.
§ 27. Positive law of nations.
These three kinds of law of nations, the Voluntary, the Conventional, and the Customary, together constitute the Positive Law of Nations. For they all proceed from the will of Nations; the Voluntary from their presumed consent, the Conventional from an express consent, and the Customary from tacit consent; and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of positive law of nations. We shall be careful to distinguish them from the Natural or Necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the Necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the Voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law which they are to observe towards each other differs in certain instances from the maxims of the internal law, which nevertheless remains always obligatory in point of conscience. As to the rights introduced by Treaties or by Custom, there is no room to apprehend that any one will confound them with the Natural law of nations. They form that species of law of nations which authors have distinguished by the name of Arbitrary.
§ 28. General maxim respecting the use of the necessary and the voluntary law.
To furnish the reader beforehand with a general direction respecting the distinction between the Necessary and the Voluntary law, let us here observe, that, as the Necessary law is always obligatory on the conscience, a nation ought never to lose sight of it in deliberating on the line of conduct she is to pursue in order to fulfill her duty; but when there is question of examining what she may demand of other states, she must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind.
BOOK 1: Of Nations Considered in Themselves
CHAPTER 1: Of Nations or Sovereign States
§ 1. Of the state, and of sovereignty
A NATION or a state is, as has been said at the beginning of this work, a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength. From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a Public Authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the Sovereignty; and he or they who are invested with it are the Sovereign.
(K. Notes: At this point, it seems as though Vattel is referring to the government as the sovereign. Prior to 1776; in the old world order that was the usual practice.
In these united States of America, literally started a new world order. The government gets its power from The Sovereign entity, called "the governed". We see this in the second paragraph of The unanimous Declaration, "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".
It is the unified body of voters, in the majority of the total number [today we call them REGISTERED VOTERS], who are the Sovereign entity with authority to grant and adjust government powers. Then, those types of laws that the people have authorized the government to create are enforced on the individuals of that society.)
§ 2. Authority of the body politic over the members.
It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or state; but the exercise of that authority may be placed in different hands, according as the society may have ordained.
(K. Notes: This is important, "each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare". In these united States of America those things that relate to the common welfare are concretely tied to this phrase from The Declaration; "That to secure these rights, Governments are instituted among Men". If that political power does not connect to the equal protection of all citizen's rights our government is prohibited from exercising that power — because the governed people are prohibited from granting that power in the first place.
Contrary to popular misconception, the people, even if unanimous in consent, cannot honorably grant to government any powers that violate the rights of any individual or group of them, if they are not unjustly violating the rights of others. In this instance, we see the use of Imminent Domain as one such unjust power. The general practice is that government takes property from a citizen who has done nothing wrong. The taking, supposedly in the name of that which is "best for the community", removes the lawful ownership of the property and delivers it to the thieves who use the government to steal it for them.)
§ 3. Of the several kinds of government.
If the body of the nation keep in its own hands the empire, or the right to command, it is a Popular government, a Democracy; if it intrust it to a certain number of citizens, to a senate, it establishes an Aristocratic republic; finally, if it confide the government to a single person, the state becomes a Monarchy.
(K. Notes: This clause, "If the body of the nation keep in its own hands the empire, or the right to command, it is a Popular government, a Democracy" is exactly how these united States of America was established. We see this from The Declaration, in the phrase, "Governments are instituted among Men, deriving their just powers from the consent of the governed".
Then, we see the democratic form established in these united States of America, by way of the 1756 definition for Democracy. [One of the three forms of government ; that in which the sovereign power is lodged in the body of the people.] Unfortunately, it does not specify the other two forms.
This is exactly what The Declaration does for the united States citizens. It keeps the right to grant power to government in the hands of the governed people.
The people then hire, though elections, officers of government to manager the people's common affairs.)
These three kinds of government may be variously combined and modified. We shall not here enter into the particulars; this subject belonging to the public universal law; for the object of the present work, it is sufficient to establish the general principles necessary for the decision of those disputes that may arise between nations.
§ 4. What are sovereign states.
Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State, Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.
§ 5. States bound by unequal alliance.
We ought, therefore, to account as sovereign states those which have united themselves to another more powerful, by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honor, and to the weaker, more assistance. The conditions of those unequal alliances may be infinitely varied, But whatever they are, provided the inferior ally reserve to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state, that keeps up an intercourse with others under the authority of the law of nations.
§ 6. Or by treaties of protection.
Consequently a weak state, which, in order to provide for its safety, places itself under the protection of a more powerful one, and engages, in return, to perform several offices equivalent to that protection, without however divesting itself of the right of government and sovereignty, — that state, I say, does not, on this account, cease to rank among the sovereigns who acknowledge no other law than that of nations.
§ 7. Of tributary states.
There occurs no greater difficulty with respect to tributary states; for though the payment of tribute to a foreign power does in some degree diminish the dignity of those states, from its being a confession of their weakness, — yet it suffers their sovereignty to subsist entire. The custom of paying tribute was formerly very common, — the weaker by that means purchasing of their more powerful neighbor an exemption from oppression, or at that price securing his protection, without ceasing to be sovereigns.
§ 8. Of feudatory states.
The Germanic nations introduced another custom — that of requiring homage from a state either vanquished, or too weak to make resistance. Sometimes even, a prince has given sovereignties in fee, and sovereigns have voluntarily rendered themselves feudatories to others.
When the homage leaves independency and sovereign authority in the administration of the state, and only means certain duties to the lord of the fee, or even a mere honorary acknowledgment, it does not prevent the state or the feudatory prince being strictly sovereign. The king of Naples pays homage for his kingdom to the pope, and is nevertheless reckoned among the principal sovereigns of Europe,
§ 9. Of two states subject to the same prince.
Two sovereign states may also be subject to the same prince, without any dependence on each other, and each may retain all its rights as a free and sovereign state. The king of Prussia is sovereign prince of Neufchatel in Switzerland, without that principality being in any manner united to his other dominions; so that the people of Neufchatel, in virtue of their franchises, may serve a foreign power at war with the king of Prussia, provided that the war be not on account of that principality.
§ 10. Of states forming a federal republic.
Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted.
(K. Notes: This paragraph exactly details what happened with these united States of America, especially as one reads The unanimous Declaration of the thirteen united States of America and The Articles of Confederation.)
Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, and such the members of the Helvetic body.
§ 11. Of a state that has passed under the dominion of another.
But a people that has passed under the dominion of another is no longer a state, and can no longer avail itself directly of the law of nations. Such were the nations and kingdoms which the Romans rendered subject to their empire; the generality even of those whom they honored with the name of friends and allies no longer formed real states. Within themselves they were governed by their own laws and magistrates; but without, they were in every thing obliged to follow the orders of Rome; they dared not of themselves either to make war or contract alliances; and could not treat with nations.
(K. Notes: This section seems accurately to describe the relationship between these united States of America [the nation] and "The United States of America" [the nation's government]. However, any state in this union, may of right secede from the union, without first obtaining the nation's government's permission. After that point of secession, may each state exercise all the same powers that they turned over to the nation's government.
That style of secession is what happen in these united State of America in the 1860's.)
§ 12. The objects of this treatise.
The law of nations is the law of sovereigns; free and independent states are moral persons, whose rights and obligations we are to establish in this treatise.
CHAPTER 2: General Principles of the Duties of a Nation Towards Itself
§ 13. A nation ought to act agreeably to its nature.
IF the rights of a nation spring from its obligations, it is principally from those that relate to itself. It will further appear, that its duties towards others depend very much on its duties towards itself, as the former are to be regulated and measured by the latter. As we are then to treat of the obligations and rights of nations, an attention to order requires that we should begin by establishing what each nation owes to itself.
The general and fundamental rule of our duties towards ourselves is, that every moral being ought to live in a manner conformable to his nature, naturae conveni enter vivere. A nation is a being determined by its essential attributes, that has its own nature, and can act in conformity to it. There are then actions of a nation as such, wherein it is concerned in its national character, and which are either suitable or opposite to what constitutes it a nation; so that it is not a matter of indifference whether it performs some of those actions, and omits others. In this respect, the Law of Nature prescribes it certain duties. We shall see, in this first book, what conduct a nation ought to observe, in order that it may not be wanting to itself. But we shall first sketch out a general idea of this subject.
§ 14. Of the preservation and perfection of a nation.
He who no longer exists can have no duties to perform: and a moral being is charged with obligations to himself, only with a view to his perfection and happiness: for to preserve and to perfect his own nature, is the sum of all his duties to himself.
The preservation of a nation consists in the duration of the political association by which it is formed. If a period is put to this association, the nation or state no longer subsists, though the individuals that composed it, still exist.
The perfection of a nation is found in what renders it capable of obtaining the end of civil society; and a nation is in a perfect state, when nothing necessary is wanting to arrive at that end. We know that the perfection of a thing consists, generally, in the perfect agreement of all its constituent parts to tend to the same end. A nation being a multitude of men united together in civil society — if in that multitude all conspire to attain the end proposed in forming a civil society, the nation is perfect; and it is more or less so, according as it approaches more or less to that perfect agreement. In the same manner its external state will be more or less perfect, according as it concurs with the interior perfection of the nation.
(K. Notes: This paragraph tends to define the phrase "a more perfect union", found in The Constitution's Preamble.)
§ 15. What is the end of civil society.
The end or object of civil society is to procure for the citizens whatever they stand in need of for the necessities, the conveniences, the accommodation of life, and, in general, whatever constitutes happiness, — with the peaceful possession of property, a method of obtaining justice with security, and, finally, a mutual defense against all external violence.
It is now easy to form a just idea of the perfection of a state or nation: — every thing in it must conspire to promote the ends we have pointed out.
(K. Notes: It may be better states that the perfection of a civil society would be that every thing within it must conspire to promote the purpose for which it was created. That purpose, should be detailed in a written document for future generation to follow or to amend as they see fit.)
§ 16. A nation is under an obligation to preserve itself.
In the act of association, by virtue of which a multitude of men form together a state or nation, each individual has entered into engagements with all, to promote the general welfare; and all have entered into engagements with each individual, to facilitate for him the means of supplying his necessities, and to protect and defend him. It is manifest that these reciprocal engagements can no otherwise be fulfilled than by maintaining the political association. The entire nation is then obliged to maintain that association; and as their preservation depends on its continuance, it thence follows that every nation is obliged to perform the duty of self-preservation.
(K. Notes: This phrase, "and all have entered into engagements with each individual, to facilitate for him the means of supplying his necessities, and to protect and defend him" should not be taken to mean that each individual or even that the government is to provide for each citizen those things that might make them happy.
However, it should be understood that as member of a society, each member has a duty to help make sure that other members ar not unjustly hindered in the pursuit of their happiness. We see these concepts in the mutual pledge at the end of The Declaration; " And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."
This obligation, so natural to each individual of God's creation, is not derived to nations immediately from nature, but from the agreement by which civil society is formed: it is therefore not absolute, but conditional, — that is to say, it supposes a human act, to wit, the social compact. And as compacts may be dissolved by common consent of the parties — if the individuals that compose a nation should unanimously agree to break the link that binds them, it would be lawful for them to do so, and thus to destroy the state or nation; but they would doubtless incur a degree of guilt, if they took this step without just and weighty reasons; for civil societies are approved by the Law of Nature, which recommends them to mankind, as the true means of supplying all their wants, and of effectually advancing towards their own perfection. Moreover, civil society is so useful, nay so necessary to all citizens, that it may well be considered as morally impossible for them to consent unanimously to break it without necessity. But what citizens may or ought to do — what the majority of them may resolve in certain cases of necessity or of pressing exigency — are questions that will be treated of elsewhere: they cannot be solidly determined without some principles which we have not yet established. For the present, it is sufficient to have proved, that, in general, as long as the political society subsists, the whole nation is obliged to endeavor to maintain it.
(K. Notes: "that is to say, it supposes a human act, to wit, the social compact. And as compacts may be dissolved by common consent of the parties" is an interesting statement.
One could suppose it is the advice that the 1860's President Lincoln used to falsely force a party to remain in a union that they felt no longer protected their rights as equally as the other members.
According to the social contracts in play at the time, The Declaration and The U. S. Constitution, Lincoln's actions violated the terms of those contracts; The Declaration being the superior contract. It states: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
And then there is the 10th Constitutional Amendment, which states; "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This simply means that since The Constitution does not prohibit the power or right of session to the state, the states may exercise that right; BUT only so long as the people have granted to their respective states the exercise of that power in accord with The Declaration's terms.)
§ 17. And to preserve its members.
If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members weakens it, and is injurious to its preservation. It owes this also to the members in particular, in consequence of the very act of association; for those who compose a nation are united for their defense and common advantage; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he on his side fulfills the conditions.
The body of a nation cannot then abandon a province, a town, or even a single individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety.
§ 18. A nation has a right to every thing necessary for its preservation.
Since then a nation is obliged to preserve itself, it has a right to every thing necessary for its preservation. For the Law of Nature gives us a right to every thing without which we cannot fulfill our obligation; otherwise it would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it. It will doubtless be here understood, that those means ought not to be unjust in themselves, or such as are absolutely forbidden by the Law of Nature. As it is impossible that it should ever permit the use of such means, — if on a particular occasion no other present themselves for fulfilling a general obligation, the obligation must, in that particular instance, be looked on as impossible, and consequently void.
(K. Notes: That if the only means for government to accomplish a given task is an unjust action; than the task given must be void. Therefore, Eminent Domain, the unjust taking of property that others own, and usually against their will; must not be an option of government.)
§ 19. It ought to avoid every thing that might occasion its destruction.
By an evident consequence from what has been said, a nation ought carefully to avoid, as much as possible, whatever might cause its destruction, or that of the state, which is the same thing.
§ 20. Of its right to every thing that may promote this end.
A nation or state has a right to every thing that can help to ward off imminent danger, and kept at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation.
(K. Notes: It seems here that Vattel advocates for the government use of Eminent Domain.
There truly are so very few occasions where the government might need private property to preserve the nation. One such instance is if an individual possess a key defensive point, during times of actual war, that the government may, while that war last, take temporary possession of that land, but must return it in equal or better condition than it was then they took use of it. To take it for long than needed, is stealing.)
§ 21. A nation ought to perfect itself and the state.
The second general duty of a nation towards itself is to labor at its own perfection and that of its state. It is this double perfection that renders a nation capable of attaining the end of civil society: it would be absurd to unite in society, and yet not endeavor to promote the end of that union.
Here the entire body of a nation, and each individual citizen, are bound by a double obligation, the one immediately proceeding from nature, and the other resulting from their reciprocal engagements. Nature lays an obligation upon each man to labor after his own perfection; and in so doing, he labors after that of civil society, which could not fail to be very flourishing, were it composed of none but good citizens. But the individual finding in a well-regulated society the most powerful succors to enable him to fulfill the task which Nature imposes upon him in relation to himself, for becoming better, and consequently more happy — he is doubtless obliged to contribute all in his power to render that society more perfect.
(K. Notes: With this statement, "— he is doubtless obliged to contribute all in his power to render that society more perfect"; one common problem seem too popular. The person or people who have an excess abundance, without the consent of the remaining body of society; try to re-form that society as those individuals think best. This Best, tends to simply be more-profitable to those individuals.)
All the citizens who form a political society reciprocally engage to advance the common welfare, and as far as possible to promote the advantage of each member. Since then the perfection of the society is what enables it to secure equally the happiness of the body and that of the members, the grand object of the engagements and duties of a citizen is to aim at this perfection, This is more particularly the duty of the body collective in all their common deliberations, and in every thing they do as a body.
§ 22. And to avoid every thing contrary to its perfection.
A nation therefore ought to prevent, and carefully to avoid, whatever may hinder its perfection and that of the state, or retard the progress either of the one or the other.
§ 23. The rights it derives from these obligations.
We may then conclude, as we have done above in regard to the preservation of a state (§ 18), that a nation has a right to every thing without which it cannot attain the perfection of the members and of the state, or prevent and repel whatever is contrary to this double perfection.
§ 24. Examples.
On this subject, the English furnish us an example highly worthy of attention. That illustrious nation distinguishes itself in a glorious manner by its application to every thing that can render the state more flourishing. An admirable constitution there places every citizen in a situation that enables him to contribute to this great end, and everywhere diffuses that spirit of genuine patriotism which zealously exerts itself for the public welfare. We there see private citizens form considerable enterprises, in order to promote the glory and welfare of the nation. And while a bad prince would find his hands tied up, a wise and moderate king finds the most powerful aids to give success to his glorious designs. The nobles and the representatives of the people form a link of confidence between the monarch and the nation, and, concurring with him in every thing that tends to promote the public welfare, partly case him of the burden of government, give stability to his power, and procure him an obedience the more perfect, as it is voluntary. Every good citizen sees that the strength of the state is really the advantage of all, and not that of a single person. Happy constitution! which they did not suddenly obtain: it has cost rivers of blood; but they have not purchased it too dear. May luxury, that pest so fatal to the manly and patriotic virtues, that minister of corruption so dangerous to liberty, never overthrow a monument that does so much honor to human nature — a monument capable of teaching kings how glorious it is to rule over a free people!
There is another nation illustrious by its bravery and its victories. Its numerous and valiant nobility, its extensive and fertile dominions, might render it respectable throughout all Europe, and in a short time it might be in a most flourishing situation, but its constitution opposes this; and such is its attachment to that constitution, that there is no room to expect a proper remedy will ever be applied. In vain might a magnanimous king, raised by his virtues above the pursuits of ambition and injustice, from the most salutary designs for promoting the happiness of his people; — in vain might those designs be approved by the more sensible part, by the majority of the nation; — a single deputy, obstinate, or corrupted by a foreign power, might put a stop to all, and disconcert the wisest and most necessary measures. From an excessive jealousy of its liberty, that nation has taken such precautions as must necessarily place it out of the power of the king to make any attempts on the liberties of the public. But is it not evident that those precautions exceed the end proposed — that they tie the hands of the most just and wise prince, and deprive him of the means of securing the public freedom against the enterprises of foreign powers, and of rendering the nation rich and happy? Is it not evident that the nation has deprived itself of the power of acting, and that its councils are exposed to the caprice or treachery of a single member?
§ 25. A nation ought to know itself.
We shall conclude this chapter, with observing that a nation ought to know itself. Without this knowledge it cannot make any successful endeavors after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know the progress it has already made, and what further advances it has still to make, — what advantages it possesses, and what defects it labors under, in order to preserve the former, and correct the latter. Without this knowledge a nation will act at random, and often take the most improper measures. It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skillful, — not perceiving that such or such regulation, such or such practice, though salutary to one state, is often pernicious to another. Every thing ought to be conducted according to its nature. Nations cannot be well governed without such regulations as are suitable to their respective characters; and in order to this, their characters ought to be known.
(K. Notes: "A nation ought to know itself." Without this KNOWING, "It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skillful, — not perceiving that such or such regulation, such or such practice, though salutary to one state, is often pernicious to another."
Such has become the fate of these united States of America. We claim to adhere to our founding principles, as we celebrate them every July 4th. Our actions follow the most popular government forms world-wide, but without plan to connect such practices to our design; and worse yet, without a notion to amend the design to accommodate those practices.
CHAPTER 3: Of the Constitution of a State, and the Duties and Rights of the Nation in this Respect WE were unable to avoid in the first chapter, anticipating something of the subject of this.
§ 26. Of public authority.
We have seen already that every political society must necessarily establish a public authority to regulate their common affairs, — to prescribe to each individual the conduct he ought to observe with a view to the public welfare, and to possess the means of procuring obedience. This authority essentially belongs to the body of the society; but it may be exercised in a variety of ways; and every society has a right to choose that mode which suits it best.
§ 27. What is the constitution of a state.
The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body politic, how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labor in common for obtaining those advantages with a view to which the political society was established.
§ 28. The nation ought to choose the best constitution.
The perfection of a state, and its aptitude to attain the ends of society, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to choose the best constitution possible, and that most suitable to its circumstances. When it makes this choice, it lays the foundation of its own preservation, safety, perfection, and happiness: — it cannot take too much care in placing these on a solid basis.
§ 29. Of political, fundamental, and civil laws.
The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted, — those, in a word, which together form the constitution of the state, are the fundamental laws.
(K. Notes: "in a word, which together form the constitution of the state, are the fundamental laws" is where The U. S. Constitution, Article 6 calls this fundamental law -- Supreme Law of the Land.)
The civil laws are those that regulate the rights and conduct of the citizens among themselves.
Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws, — in establishing them, I say, with wisdom in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and that they may create, if possible, no dissension — that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty and their rights. It is not here necessary to consider in detail what that constitution and those laws ought to be: that discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.
§ 30. Of the support of the constitution and obedience to the laws.
The constitution and laws of a state are the basis of the public tranquility, the firmest support of political authority, and a security for the liberty of the citizens. But this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state and to violate its laws, is a capital crime against society; and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted. The nation ought constantly to repress them with its utmost vigor and vigilance, as the importance of the case requires. It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of mankind: — impressed thenceforward with this excellent maxim (no less essential in politics than in morals) principiis obsta, — they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises.
(K. Notes: The Declaration's second paragraph essentially covers all of the bases brought out in this section.
First the "bases" from this section, then the [remedy] from The Declaration or The Constitution:
"To attack the constitution of the state and to violate its laws, is a capital crime against society" [The Declaration: A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.]
"and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are intrusted." [By definition from 1756; the use of political force against withstanders being the primary element of WAR; The Constitution, Article 3, Section 3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.]
"The nation ought constantly to repress them with its utmost vigor and vigilance, as the importance of the case requires." [That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.]
"It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard." [Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.]
"Sudden revolutions strike the imaginations of men: they are detailed in history; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked." [But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security]
"It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of mankind: — impressed thenceforward with this excellent maxim (no less essential in politics than in morals) principiis obsta, — they would no longer shut their eyes against innovations, which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises." [.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. ]
The unfortunate aspect about history, is that hose who refuse to learn the lesson from the past are doomed to repeat the mistakes from the past. The Declaration is supposed to be those past lessons. Unfortunately, we do not study those lesson towards the end of NOT repeating them.)
§ 31. The rights of a nation with respect to its constitution and government.
The consequences of a good or bad constitution being of such importance, and the nation being strictly obliged to procure, as far as is possible, the best and most convenient one, it has a right to every thing necessary to enable it to fulfill this obligation (§ 18). It is then manifest that a nation has an indisputable right to form, maintain, and perfect its constitution, to regulate at pleasure every thing relating to the government, and that no person can have a just right to hinder it. Government is established only for the sake of the nation, with a view to its safety and happiness.
§ 32. It may reform the government.
If any nation is dissatisfied with the public administration, it may apply the necessary remedies, and reform the government. But observe that I say "the nation;" for I am very far from meaning to authorize a few malcontents or incendiaries to give disturbance to their governors by exciting murmurs and seditions. None but the body of a nation have a right to check those at the helm when they abuse their power. When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretense of reforming it.
(K. Notes: "When the nation is silent and obeys, the people are considered as approving the conduct of their superiors, or at least finding it supportable; and it is not the business of a small number of citizens to put the state in danger, under the pretense of reforming it."
The Declaration's phrase, consent of the governed makes it impossible for a voter to remain silent. The voter's supposed silence of not submitting a ballot -- is not silence at all, but a loud declaration of NON-CONSENT. In these united States of America, almost none of the people in any of our elected offices nationwide in all government levels and branches were elected with enough consenting votes.
Yet, through the government sponsored ignorance via the public indoctrination system we call schools; citizens are not taught, and far too few learn how our votes are supposed to be counted.)
§ 33. And may change the constitution.
In virtue of the same principles, it is certain that if the nation is uneasy under its constitution, it has a right to change it.
There can be no difficulty in the case, if the whole nation be unanimously inclined to make this change. But it is asked, what is to be done if the people are divided? In the ordinary management of the state, the opinion of the majority must pass without dispute for that of the whole nation: otherwise it would be almost impossible for the society ever to take any resolution. It appears then, by parity of reasoning, that a nation may change the constitution of the state by a majority of votes; and whenever there is nothing in this change that can be considered as contrary to the act of civil association, or to the intention of those united under it, the whole are bound to conform to the resolution of the majority. But if the question be, to quit a form of government to which alone it appeared that the people were willing to submit on their entering into the bonds of society, — if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty, and resolved to submit to the authority of a monarch, — those citizens who are more jealous of that privilege, so invaluable to those who have tasted it, though obliged to suffer the majority to do as they please, are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have a right to retire elsewhere, to sell their lands, and take with them all their effects.
(K. Notes: Above, Vattel states, "It appears then, by parity of reasoning, that a nation may change the constitution of the state by a majority of votes." In these united States of America, it was decided that in order to make such constitutional changes, that 3/4 of the nation [3/4 of the total number of states] must be in agreement.)
§ 34. Of the legislative power, and whether it can change the constitution.
Here, again, a very important question presents itself. It essentially belongs to the society to make laws both in relation to the manner in which it desires to be governed, and to the conduct of the citizens: this is called the legislative power. The nation may intrust the exercise of it to the prince, or to an assembly and the prince jointly; who have then a right to make new laws and to repeal old ones. It is asked, whether their power extends to the fundamental laws — whether they may change the constitution of a state? The principals we have laid down lead us to decide with certainty, that the authority of those legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them. For the constitution of the state ought to possess stability: and since that was first established by the nation, which afterwards intrusted certain persons with the legislative power, the fundamental laws are expected from their commission. It is visible that the society only intended to make provision for having the state constantly furnished with laws suited to particular conjunctures, and, for that purpose, gave the legislature the power of abrogating the ancient civil and political laws that were not fundamental, and of making new ones; but nothing leads us to think that it meant to submit the constitution itself to their will. In short, it is from the constitution that those legislators derive their power: how then can they change it without destroying the foundation of their own authority? By the fundamental laws of England, the two houses of parliament, in concert with the king, exercise the legislative power: but, if the two houses should resolve to suppress themselves, and to invest the king with full and absolute authority, certainly the nation would not suffer it. And who would dare to assert that they would not have a right to oppose it? But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives.
(K. Notes: Vattel states: " it is from the constitution that those legislators derive their power: how then can they change it without destroying the foundation of their own authority?" and presents, "But if the parliament entered into a debate on making so considerable a change, and the whole nation was voluntarily silent upon it, this would be considered as an approbation of the act of its representatives."
In these united States of America, with The Declaration's contractual term of consent of the governed, should the people 'remain silent' so to speak, this cannot by any means signal that the people are in agreement. Since they literally have not consented then their silence is strong disagreement.
As to the first part of this note: Whether or not the people constitutionally allow the government officers to alter the constitution that governs their powers; would be as fool-hearty as parents allowing their children to dictate what the rules of the household are supposed to mean. Or worse yet, allow the jailed people and other criminal to dictate to society what the laws are supposed to mean.
Allowing government officers to 'interpret' the meaning of the constitution that governs their powers destroys the nation. We see this in these united States of America, which has allowed the supreme Court judges to dictate the meaning of The Constitution that governs their powers.)
§ 35. The nation ought not to attempt it without great caution.
But in treating here of the change of the constitution, we treat only of the right: the question of expediency belongs to politics. We shall therefore only observe in general, that great changes in a state being delicate and dangerous operations, and frequent changes being in their own nature prejudicial, a people ought to be very circumspect in this point, and never be inclined to make innovations without the most pressing reasons, or an absolute necessity. The fickleness of the Athenians was ever inimical to the happiness of the republic, and at length proved fatal to that liberty of which they were so jealous, without knowing, how to enjoy it.
(K. Notes: The Declaration directly addresses these concerns about the necessity for making constitutional changes; as well as addressing the warning about making changes to suit the fad of the day. It addresses these concerns in the second paragraph, with these words, "--That whenever any Form of Government becomes destructive of these ends [securing the peoples' rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.")
§ 36. It is the judge of all disputes relating to the government.
We may conclude from what has been said (§ 33), that if any disputes arise in a state respecting the fundamental laws, the public administration, or the rights of the different powers of which it is composed, it belongs to the nation alone to judge and determine them conformably to its political constitution.
(K. Notes: Not only is Vattel's point here logical, it would play this way in these united States of America:
Our nation's level of government would be regulated by 3/4 of the total number of States that make the nation.
Each state level of government would then in turn be governed (by example from the US Constitution) by 3/4 of all the counties that make the state.
Then, each county level government isw controlled by 3/4 of all the municipal level governments.
Next, in accord with The Declaration, every municipal level government [city, town, village, precinct, ward, etc.] would be controlled by the majority of 50%+1 of the total number of people registered as voters in that municipal jurisdiction.
Finally, since every Representative is by contract required to only act as the respective constitutions authorizes; there really is little to no need to have a formal body of legislators —other than the citizens themselves.
After all, there are so few instances; after so many millennia of humans with governments; that would require emergency legislative sessions.
The benefits of such direct legislative structure is that only the societies that actually pass such laws are bound by them, until such time a majority of communities in the next-larger jurisdiction pass the exact same acts and laws. Each legislative act, then naturally advances into larger political jurisdictions. By the time the legislative act becomes nationwide, the vast majority of citizens will have had their vote counted and nearly every citizens will have herard aobut it and know about it. As opposed to the somewhat secretive sessions at the national-level legislative houses where lobbyists and political action committees have greater influence with legislators than do their own constituents.
Buying votes with so few people in that legislative body [535 in the US Congress] is rather simple for a single rich person.
Imagine if the riches person on Earth wanted to buy enough votes to pass some law. They literally would have to buy a huge number of the total number of registered voter's votes. It is unlike that a group of 20 of the richest people on earth could buy enough votes to win a national campaign.)
§ 37. No foreign power has a right to interfere.
In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices unless requested to do it, or induced by particular reasons. If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury.
CHAPTER 4: Of the Sovereign, His Obligations, and His Rights
§ 38. Of the sovereign.
THE reader cannot expect to find here a long deduction of the rights of sovereignty, and the functions of a prince. These are to be found in treatises on the public law. In this chapter we only propose to show, in consequence of the grand principles of the law of nations, what a sovereign is, and to give a general idea of his obligations and his rights.
We have said that the sovereignty is that public authority which commands in civil society, and orders and directs what each citizen is to perform, to obtain the end of its institution. This authority originally and essentially belonged to the body of the society, to which each member submitted, and ceded his natural right of conducting himself in every thing as he pleased, according to the dictates of his own understanding, and of doing himself justice. But the body of the society does not always retain in its own hands this sovereign authority: it frequently intrusts it to a senate, or to a single person. That senate, or that person, is then the sovereign.
(K. Notes: Vattel states, "the body of the society does not always retain in its own hands this sovereign authority: it frequently intrusts it to a senate, or to a single person. That senate, or that person, is then the sovereign." He tends to be mistaken on this point.
Simply because the society, or body of citizens grants to a body of legislators or king to pass laws and enforce them — this does not make that body or king the sovereign. It does in fact, make those, the servant to the citizen-body as a whole.
The Sovereignty always remains with the body of the citizens as a whole. In these united States of America, the people retained the sovereignty, delegating to government certain specific authority to exercise certain granted powers over the people and as representatives of the people to foreign powers and no more.
§ 39. It is solely established for the safety and advantage of society.
It is evident that men form a political society, and submit to laws, solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens; and it would be absurd to think that it could change its nature on passing into the hands of a senate or a monarch. Flattery, therefore, cannot, without rendering itself equally ridiculous and odious, deny that the sovereign is only established for the safety and advantage of society.
A good prince, a wise conductor of society, ought to have his mind impressed with this great truth, that the sovereign power is solely intrusted to him for the safety of the state, and the happiness of all the people; that he is not permitted to consider himself as the principal object in the administration of affairs, to seek his own satisfaction, or his private advantage; but that he ought to direct all his views, all his steps, to the greatest advantage of the state and people who have submitted to him. What a noble sight it is to see a king of England rendering his parliament an account of his principal operations — assuring that body, the representatives of the nation, that he has no other end in view than the glory of the state and the happiness of his people — and affectionately thanking all who concur with him in such salutary views! Certainly, a monarch who makes use of this language, and by his conduct proves the sincerity of his professions, is, in the opinion of the wise, the only great man. But, in most kingdoms, a criminal flattery has long since caused these maxims to be forgotten. A crowd of servile courtiers easily persuade a proud monarch that the nation was made for him, and not he for the nation. He soon considers the kingdom as a patrimony that is his own property, and his people as a herd of cattle from which he is to derive his wealth, and which he may dispose of to answer his own views, and gratify his passions. Hence those fatal wars undertaken by ambition, restlessness, hatred, and pride; — hence those oppressive taxes, whose produce is dissipated by ruinous luxury, or squandered upon mistresses and favorites; — hence, in fine, are important posts given by favor, while public merit is neglected, and every thing that does not immediately interest the prince is abandoned to ministers and subalterns. Who can, in this unhappy government, discover an authority established for the public welfare? A great prince will be on his guard even against his virtues. Let us not say, with some writers, that private virtues are not the virtues of kings — a maxim of superficial politicians, or of those who are very inaccurate in their expressions. Goodness, friendship, gratitude, are still virtues on the throne; and would to God they were always to be found there! But a wise king does not yield an undiscerning obedience to their impulse. He cherishes them, he cultivates them in his private life; but in state affairs he listens only to justice and sound policy. And why? because he knows that the government was intrusted to him only for the happiness of society, and that, therefore, he ought not to consult his own pleasure in the use he makes of his power. He tempers his goodness with wisdom; he gives to friendship his domestic and private favors; he distributes posts and employments according to merit; public rewards to services done to the state. In a word, he uses the public power only with a view to the public welfare. All this is comprehended in that fine saying of Lewis XII.: — "A king of France does not revenge the injuries of a duke of Orleans."
40. Of his representative character.
A political society is a moral person (Prelim. § 2) inasmuch as it has an understanding and a will, of which it makes use for the conduct of its affairs, and is capable of obligations and rights. When, therefore, a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority. The sovereign, or conductor of the state, thus becoming the depositary of the obligations and rights relative to government, in him is found the moral person, who, without absolutely ceasing to exist in the nation, acts thenceforwards only in him and by him. Such is the origin of the representative character attributed to the sovereign. He represents the nation in all the affairs in which he may happen to be engaged as a sovereign. It does not debase the dignity of the greatest monarch to attribute to him this representative character; on the contrary, nothing sheds a greater luster on it, since the monarch thus unites in his own person all the majesty that belongs to the entire body of the nation.
(K. Notes: Vattel, as stated in other locations, confuses the authority granted by the Sovereign body, as though the Sovereignty itself has changed hands.
The Sovereignty always remains with the citizens. The citizens may, as they will, delegate certain powers to an individual or group to do for them as the majority of the citizens may direct. Thus, the government officers do not attain the title of Sovereignty in any way, except that of performing certain sovereign duties for the citizens.)
§ 41. He is intrusted with the obligations of the nation, and invested with its rights.
The sovereign, thus clothed with the public authority, with every thing that constitutes the moral personality of the nation, of course becomes bound by the obligations of that nation, and invested with its rights.
(K. Notes: Exception to this 'rule' exists, especially where written constitutions exist that detail the powers of that Government Officer do not permit that Officer to alter the powers granted.
In this manner, if the Government Officers considers it necessary to exercise a power not granted or beyond that which is granted; that Officer must stop at the point that is granted, or suffer punishments for violating the citizens by going beyond the authority granted by them.)
§ 42 His duty with respect to the preservation and perfection of the nation.
All that has been said in Chap. II. of the general duties of a nation towards itself particularly regards the sovereign. He is the depositary of the empire, and the power of commanding whatever conduces to the public welfare; he ought, therefore, as a tender and wise father, and as a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against every thing that threatens its safety or its happiness.
§ 43. His rights in this respect.
Hence all the rights which a nation derives from its obligation to preserve and perfect itself, and to improve its state, (see §§ 18, 20, and 23, of this book); all these rights, I say, reside in the sovereign, who is therefore indifferently called the conductor of the society, superior, prince, etc.
(K. Notes: The government is the 'orchestra'; the unified body of people, the conductor.
The unified body of the people is the Prince; the government officers are those selected to carry out the will of the unified body.)
§ 44. He ought to know the nation.
We have observed above, that every nation ought to know itself. This obligation devolves on the sovereign, since it is he who is to watch over the preservation and perfection of the nation. The duty which the law of nature here imposes on the conductors of nations is of extreme importance, and of considerable extent. They ought exactly to know the whole country subject to their authority; its qualities, defects, advantages, and situation with regard to the neighboring states; and they ought to acquire a perfect knowledge of the manners and general inclinations of their people, their virtues, vices, talents, etc. All these branches of knowledge are necessary to enable them to govern properly.
§ 45. The extent of his power. Prerogatives of majesty.
The prince derives his authority from the nation; he possesses just so much of it as they have thoughtproper to intrust him with. If the nation has plainly and simply invested him with the sovereignty, without limitation or division, he is supposed to be invested with all the prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called regal prerogatives, or the prerogatives of majesty.
§ 46. The prince ought to respect and support the fundamental laws.
But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws show the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labor for the attainment of happiness; the execution is intrusted to the prince. Let him religiously follow this plan; let him consider the fundamental laws as inviolable and sacred rules; and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws: and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?
(K. Notes: This is excellent food for thought, both for the Sovereignty of the people, but also for those set into government offices, "Let him religiously follow this plan; let him consider the fundamental laws as inviolable and sacred rules; and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws: and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?")
§ 47. He may change the laws not fundamental.
If the prince be invested with the legislative power, he may, according to his wisdom, and when the public advantage requires it, abolish those laws that are not fundamental, and make new ones. (See what we have said on this subject in the preceding chapter, § 34.)
§ 48. He ought to maintain and observe the existing laws.
But while these laws exist, the sovereign ought religiously to maintain and observe them. They are the foundation of the public tranquility, and the firmest support of the sovereign authority. Every thing is uncertain, violent, and subject to revolutions, in those unhappy states where arbitrary power has placed her throne. It is therefore the true interest of the prince, as well as his duty, to maintain and respect the laws; he ought to submit to them himself. We find this truth established in a piece published by order of Lewis XIV., one of the most absolute princes that ever reigned in Europe. "Let it not be said that the sovereign is not subject to the laws of his state, since the contrary proposition is one of the truths of the law of nations, which flattery has sometimes attacked, and which good princes have always defended, as a tutelar divinity of their states."
§ 49. In what sense he is subject to the laws.
But it is necessary to explain this submission of the prince to the laws. First, he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, "in his private affairs;" for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by hisexample. But, sixthly, he is certainly above all civil penal laws, The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretense of a fault that does not directly concern the government of the state.
(K. Notes: If the laws intended to govern the people are not fit for the chiefest of government officers; those laws must be removed and not enforced upon any person.
To allow government officers to violate the civil laws under the flag of official business is to nullify those law altogether; because the people are the official business of the government.)
§ 50. His person is sacred and inviolable.
It is not sufficient that the prince be above the penal laws: even the interest of nations requires that we should go something farther. The sovereign is the soul of the society; if he be not held in veneration by the people, and in perfect security, the public peace, and the happiness and safety of the state, are in continual danger. The safety of the nation then necessarily requires that the person of the prince be sacred and inviolable. The Roman people bestowed this privilege on their tribunes, in order that they might meet with no obstruction in defending them, and that no apprehension might disturb them in the discharge of their office. The cares, the employments of a sovereign, are of much greater importance than those of the tribunes were, and not less dangerous, if he be not provided with a powerful defense. It is impossible even for the most just and wise monarch not to make malcontents; and ought the state to continue exposed to the danger of losing so valuable a prince by the hand of an assassin? The monstrous and absurd doctrine, that a private person is permitted to kill a bad prince, deprived the French, in the beginning of the last century, of a hero who was truly the father of his people. Whatever a prince may be, it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey.
(K. Notes: To assume that a nation cannot function it is chief government office be tried and punished for violating a civil law; that society is weak and not likely to stand, even if that officer remained unmolested while society is under attack.
There is question about this statement by Vattel: "it is an enormous crime against a nation to deprive them of a sovereign whom they think proper to obey." This assumes that an assassination of a prince deprives the people who may be so terrified of that prince they fear their live endangered if they should collectively act against the standing armies at the prince's command.
This is not to condone the assassin's actions, for the assassin, when caught, should be punished in accord with the standing laws. The assassin must be preserved to stand trial before an impartial jury, to weigh if the actions against the government officer were justified — or not.)
§ 51. But the nation may curb a tyrant, and withdraw itself from his obedience.
But this high attribute of sovereignty is no reason why the nation should not curb an insupportable tyrant, pronounce sentence on him (still respecting in his person the majesty of his rank) and withdraw itself from his obedience. To this indisputable right a powerful republic owes its birth. The tyranny exercised by Philip II. in the Netherlands excited those provinces to rise: seven of them, closely confederated, bravely maintained their liberties, under the conduct of the heroes of the House of Orange; and Spain, after several vain and ruinous efforts, acknowledged them sovereign and independent states. If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts....
(K. Notes: This statement is important: "the prince, on exceeding the bounds prescribed him, commands without any right and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts." This is the purpose for constitutions, literally, the Job Description-Sheet for key government offices. Officers violating the respective constitutions must be punished and/or removed from office and their unjust deed — undone.)
....As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him; the people become free by the act of the sovereign, and can no longer view him but as a usurper who would load them with oppression. This truth is acknowledged by every sensible writer, whose pen is not enslaved by fear, or sold for hire. But some celebrated authors maintain, that if the prince is invested with the supreme command in a full and absolute manner, nobody has a right to resist him, much less to curb him, and that naught remains for the nation but to suffer and obey with patience. This is founded upon the supposition that such a sovereign is not accountable to any person for the manner in which he governs, and that if the nation might control his actions and resist him where it thinks them unjust, his authority would no longer be absolute; which would be contrary to this hypothesis. They say that an absolute sovereign completely possesses all the political authority of the society, which nobody can oppose; that, if he abuses it, he does ill indeed, and wounds his conscience; but that his commands are not the less obligatory, as being founded on a lawful right to command; that the nation, by giving him absolute authority, has reserved no share of it to itself, and has submitted to his discretion, etc. We might be content with answering, that in this light there is not any sovereign who is completely and fully absolute. But in order to remove all these vain subtleties, let us remember the essential end of civil society. Is it not to labor in concert for the common happiness of all? Was it not with this view that every citizen divested himself of his rights, and resigned his liberty? Could the society make such use of its authority as irrevocably to surrender itself and all its members to the discretion of a cruel tyrant? No, certainly, since it would no longer possess any right itself, if it were disposed to oppress a part of the citizens. When, therefore, it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin....
(K. Notes: Too often the people forget this concept: "When, therefore, it confers the supreme and absolute government, without an express reserve, it is necessarily with the tacit reserve that the sovereign shall use it for the safety of the people, and not for their ruin."
We see, that from The Declaration's second paragraph, that in these united States of America, the people have contractually made such reservation of power, and kept the power of recalling government officers and actions to right the nation.
We see that from The Preamble to The Constitution, and Amendment 9 of The Constitution that the people have also reserved their right to make the government more perfect; and have reserved to themselves ALL rights not enumerated within The Constitution. Also, by way of Article 5 in The Constitution, the people ultimately retain their right to amend the powers of the nation's government.)
....If he becomes the scourge of the state, he degrades himself; he is no better than a public enemy, against whom the nation may and ought to defend itself; and if he has carried his tyranny to the utmost height, why should even the life of so cruel and perfidious an enemy be spared? Who shall presume to blame the conduct of the Roman senate, that declared Nero an enemy to his country?
But it is of the utmost importance to observe, that this judgment can only be passed by the nation, or by a body which represents it, and that the nation itself cannot make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them....
(K. Notes: All to often, the people forget this concept if the nation has had long periods of prosperity and mostly peace; "and that the nation itself cannot make any attempt on the person of the sovereign, except in cases of extreme necessity, and when the prince, by violating the laws, and threatening the safety of his people, puts himself in a state of war against them." The people tend to become too forgiving of the government officer's violations against The Constitution. This forgiveness opens the door wider for future politician in the same office to expand upon those violations of the predecessor.)
....It is the person of the sovereign, not that of an unnatural tyrant and a public enemy, that the interest of the nation declares sacred and inviolable. We seldom see such monsters as Nero. In the more common cases, when a prince violates the fundamental laws; when he attacks the liberties and privileges of his subjects; or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation;...
(K. Notes: These are the types of government violations that have become all too common within these united States of America, "In the more common cases, when a prince violates the fundamental laws; when he attacks the liberties and privileges of his subjects; or (if he be absolute) when his government, without being carried to extreme violence, manifestly tends to the ruin of the nation;" and still, we do nothing.)
...it may resist him, pass sentence on him, and withdraw from his obedience; but though this may be done, still his person should be spared, and that for the welfare of the state. It is above a century since the English took up arms against their king, and obliged him to descend from the throne. A set of able, enterprising men, spurred on by ambition, took advantage of the terrible ferment caused by fanaticism and party spirit; and Great Britain suffered her sovereign to die unworthily on a scaffold. The nation coming to itself discovered its former blindness. If, to this day, it still annually makes a solemn atonement, it is not only from the opinion that the unfortunate Charles I. did not deserve so cruel a fate, but, doubtless, from a conviction that the very safety of the state requires the person of the sovereign to be held sacred and inviolable, and that the whole nation ought to render this maxim venerable, by paying respect to it when the care of its own preservation will permit.
(K. Notes: Vattel seems slightly backwards on this account: "that the very safety of the state requires the person of the sovereign to be held sacred and inviolable". For it is the office that should be held sacred. Any person violating the powers of that office should be held accountable to the fullest extent of the law — including death.)
One word more on the distinction that is endeavored to be made here in favor of an absolute sovereign. Whoever has well weighed the force of the indisputable principles we have established, will be convinced, that when it is necessary to resist a prince who has become a tyrant, the right of the people is still the same, whether that prince was made absolute by the laws, or was not; because that right is derived from what is the object of all political society — the safety of the nation, which is the supreme law. But, if the distinction of which we are treating is of no moment with respect to the right, it can be of none in practice, with respect to expediency. As it is very difficult to oppose an absolute prince, and it cannot be done without raising great disturbances in the state, and the most violent and dangerous commotions, it ought to be attempted only in cases of extremity, when the public miseries are raised to such a height that the people may say with Tacitus, miseram pacem vel bello bene niutari, that it is better to expose themselves to a civil war than to endure them. But if the prince's authority is limited, if it in some respects depends on a senate, or a parliament that represents the nation, there are means of resisting and curbing him, without exposing the state to violent shocks. When mild and innocent remedies can be applied to the evil, there can be no reason for waiting until it becomes extreme.
(K. Notes: This statement is very similar to the structure within these united States of America; "But if the prince's authority is limited, if it in some respects depends on a senate, or a parliament that represents the nation, there are means of resisting and curbing him, without exposing the state to violent shocks. When mild and innocent remedies can be applied to the evil, there can be no reason for waiting until it becomes extreme."
The problem even here, is that citizens refuse to remember this warning from The Declaration, "all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." We do nothing about the ills and evils by our "representatives," while in office, as they too become part of the problem against the solution, by doing nothing to stop corruption.)
§ 52. Arbitration between the king and his subjects.
But however limited a prince's authority may be, he is commonly very jealous of it; it seldom happens that he patiently suffers resistance, and peaceably submits to the judgement of his people. Can he want support, while he is the distributor of favors? We see too many base and ambitious souls, for whom the state of a rich and decorated slave has more charms than that of a modest and virtuous citizen. It is therefore always difficult for a nation to resist a prince and pronounce sentence on his conduct, without exposing the state to dangerous troubles, and to shocks capable of overturning it. This has sometimes occasioned a compromise between the prince and the subjects, to submit to the decision of a friendly power all the disputes that might arise between them. Thus the kings of Denmark, by solemn treaties, formerly referred to those of Sweden the differences that might arise between them and their senate; and this the kings of Sweden have also done with regard to those of Denmark. The princes and states of West Friesland, and the burgesses of Embden, have in the same manner constituted the republic of the United Provinces the judge of their differences. The princes and the city of Neufchatel established, in 1406, the canton of Berne perpetual judge and arbitrator of their disputes. Thus also, according to the spirit of the Helvetic confederacy, the entire body takes cognizance of the disturbances that arise in any of the confederated states, though each of them is truly sovereign and independent.
§ 53. The obedience which subjects owe to a sovereign.
As soon as a nation acknowledges a prince for its lawful sovereign, all the citizens owe him a faithful obedience. He can neither govern the state, nor perform what the nation expects from him, if he be not punctually obeyed. Subjects then have no right, in doubtful cases, to examine the wisdom or justice of their sovereign's commands; this examination belongs to the prince: his subjects ought to suppose (if there be a possibility of supposing it) that all his orders are just and salutary: he alone is accountable for the evil that may result from them.
(K. Notes: Regarding, "Subjects then have no right, in doubtful cases, to examine the wisdom or justice of their sovereign's commands;" as there is a distinction between that of subjects and that of Citizens, the citizens is a member of the body Sovereign and the 'prince' or government officer is merely the employee of the body Sovereign. Every member of the Sovereign body has a duty to question the authority of the 'prince' or government officer, especially when the officer's actions violate The Constitution. Without this ability to challenge unjust actions of government officers, there can be no REAL checks to balance the power against the officers who abuse their position.)
§ 54. In what cases they may resist him.
Nevertheless this ought not to be entirely a blind obedience. No engagement can oblige, or even authorize, a man to violate the law of nature. All authors who have any regard to conscience or decency agree that no one ought to obey such commands as are evidently contrary to that sacred law. Those governors of places who bravely refused to execute the barbarous orders of Charles IX. on the memorable day of St. Bartholomew, have been universally praised; and the court did not dare to punish them, at least openly. "Sire," said the brave Orte, governor of Bayonne, in his letter, "I have communicated your majesty's command to your faithful inhabitants and warriors in the garrison; and I have found there only good citizens and brave soldiers, but not a single executioner: wherefore both they and I most humbly entreat your majesty to be pleased to employ our hands and our lives in things that are possible, however hazardous they may be; and we will exert ourselves to the last drop of our blood in the execution of them." The Count de Tende, Charny, and others, replied to those who brought them the orders of the court, "that they had too great a respect for the king, to believe that such barbarous orders came from him."
(K. Notes: "Nevertheless this ought not to be entirely a blind obedience."
When it comes to the military and most police officers within these united States of America, the swearing in oath is first to The Constitution; and then to the orders; against enemies foreign AND DOMESTIC.
The unfortunate aspect, during training, is that the new recruits are indoctrinated to blindly follow orders; to not ask questions.
Worse than that, they are not taught how to recognize the REAL domestic enemies that include; legislators who pass laws that violate The Constitution, executive officers enforce those laws and unconstitutional orders; as well as the courts who all to frequently punish people for violating unconstitutional laws.
Quite the contrary. They are taught that "domestic enemies" are the civilians and other government personnel who resist unjust government actions.)
It is more difficult to determine in what cases a subject may not only refuse to obey, but even resist a sovereign, and oppose his violence by force. When a sovereign does injury to any one, he acts without any real authority; but we ought not thence to conclude hastily that the subject may resist him. The nature of sovereignty, and the welfare of the state, will not permit citizens to oppose a prince whenever his commands appear to them unjust or prejudicial. This would be falling back into the state of nature, and rendering government impossible. A subject ought patiently to suffer from the prince doubtful wrongs, and wrongs that are supportable; the former, because whoever has submitted to the decision of a judge, is no longer capable of deciding his own pretensions; and as to those that are supportable, they ought to be sacrificed to the peace and safety of the state, on account of the great advantages obtained by living in society. It is presumed, as matter of course, that every citizen has tacitly engaged to observe this moderation; because, without it, society could not exist. But when the injuries are manifest and atrocious, — when a prince, without any apparent reason attempts to deprive us of life, or of those things the loss of which would render life irksome, who can dispute our right to resist him? Self-preservation is not only a natural right, but an obligation imposed by nature, and no man can entirely and absolutely renounce it. And though he might give it up, can he be considered as having done it by his political engagements since he entered into society only to establish his own safety upon a more solid basis? The welfare of society does not require such a sacrifice; and, as Barbeyrac well observes in his notes on Grotius, "If the public interest requires that those who obey should suffer some inconvenience, it is no less for the public interest that those who command should be afraid of driving their patience to the utmost extremity." The prince who violates all laws, who no longer observes any measures, and who would in his transports of fury take away the life of an innocent person, divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy, against whom his people are allowed to defend themselves. The person of the sovereign is sacred and inviolable: but he who, after having lost all the sentiments of a sovereign, divests himself even of the appearances and exterior conduct of a monarch, degrades himself: he no longer retains the sacred character of a sovereign, and cannot retain the prerogatives attached to that exalted rank. However, if this prince is not a monster, — if he is furious only against us in particular, and from the effects of a sudden transport or a violent passion, and is supportable to the rest of the nation, the respect we ought to pay to the tranquility of the state is such, and the respect due to sovereign majesty so powerful, that we are strictly obliged to seek every other means of preservation, rather than to put his person in danger. Every one knows the example set by David: he fled, — he kept himself concealed, to secure himself from Saul's fury, and more than once spared the life of his persecutor. When the reason of Charles VI. of France was suddenly disordered by a fatal accident, he in his fury killed several of those who surrounded him: none of them thought of securing his own life at the expense of that of the king; they only endeavored to disarm and secure him. They did their duty like men of honor and faithful subjects, in exposing their lives to save that of this unfortunate monarch: such a sacrifice is due to the state and to sovereign majesty: furious from the derangement of his faculties, Charles was not guilty: he might recover his health, and again become a good king.
(K. Notes: That entire paragraph is dissected to reveal the where The Declaration solves those issues.
Regarding this statement from above: "It is more difficult to determine in what cases a subject may not only refuse to obey, but even resist a sovereign, and oppose his violence by force." First, there is a certain distinction between that of subjects and that of citizens; though in more modern times, they seem mostly interchangeable. A citizen is considered a free person; whereas a subject is bound to the sovereign. In these united States of America, it is the body of registered voters, in the majority, that is The Sovereign with respect to controlling government powers. We know this is fact, because The Declaration states, "Governments derive their just powers from the consent of the governed" [those who register as voters.]
Regarding this section: "When a sovereign does injury to any one, he acts without any real authority; but we ought not thence to conclude hastily that the subject may resist him. The nature of sovereignty, and the welfare of the state, will not permit citizens to oppose a prince whenever his commands appear to them unjust or prejudicial. This would be falling back into the state of nature, and rendering government impossible." The conflict here is that there are two parties, the offender and the offended. If the government member is the offender, and the offended has constitutional evidence that the power exercised against them is unconstitutional; whether judges agree or not; it is the duty of the offended to bring light against the offender, in hopes to shed light on the issue, discover is there are more such offenses, and unify the body of the people to put an end to it. This we get from the pledge at the end of The Declaration, which states; "And for support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other, our Lives, our Fortunes, and our sacred Honor." Every individual is responsible for holding our government officers accountable.
This section of the paragraph is most important, as The Declaration gives better advice that opposes Vattel. "A subject ought patiently to suffer from the prince doubtful wrongs, and wrongs that are supportable; the former, because whoever has submitted to the decision of a judge, is no longer capable of deciding his own pretensions; and as to those that are supportable, they ought to be sacrificed to the peace and safety of the state, on account of the great advantages obtained by living in society." The Declaration warns that, "all experience hath shewn that mankind are more disposed to suffer, while those evils are sufferable, than to right themselves by abolishing the form to which they have become accustomed." We are NOT to become accustomed to government wrongs against us, no matter how minor those wrongs may seem — and especially – when those wrongs are in violation against The Constitution.
This section is curious and also contrary to the establishment concerning these united States of America. "It is presumed, as matter of course, that every citizen has tacitly engaged to observe this moderation; because, without it, society could not exist."
The Declaration also address is section, "But when the injuries are manifest and atrocious, — when a prince, without any apparent reason attempts to deprive us of life, or of those things the loss of which would render life irksome, who can dispute our right to resist him?" with the statement, "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security"
This seems to be the intent of establishing these united states of America, "If the public interest requires that those who obey should suffer some inconvenience, it is no less for the public interest that those who command should be afraid of driving their patience to the utmost extremity." To keep government officers fully aware that the body of the governed IS the Sovereign Authority over government.
The Declaration also deals with this section as well: "The prince who violates all laws, who no longer observes any measures, and who would in his transports of fury take away the life of an innocent person, divests himself of his character, and is no longer to be considered in any other light than that of an unjust and outrageous enemy, against whom his people are allowed to defend themselves." However, The Declaration does not encourage waiting for government officers to violate all laws, which would qualify as a long train of abuses and usurpation. The Declaration encourages the people to act thusly, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government".
This is particularly curious, especially as it relates to these united States of America. "The person of the sovereign is sacred and inviolable:" The sovereign person in these united states of America, is the body of the majority of the total number of registered voters. Then, Vattel continues with, "but he [the sovereign] who, after having lost all the sentiments of a sovereign, divests himself even of the appearances and exterior conduct of a monarch, degrades himself: he no longer retains the sacred character of a sovereign, and cannot retain the prerogatives attached to that exalted rank." With that, it can be said that when registered voters begin granting to their government powers that unjustly violate other people's rights; those citizens should be prohibited from exercising any portion of the Sovereign-Vote.
The united States of America has solved the following problem as well: "However, if this prince is not a monster, — if he is furious only against us in particular, and from the effects of a sudden transport or a violent passion, and is supportable to the rest of the nation, the respect we ought to pay to the tranquility of the state is such, and the respect due to sovereign majesty so powerful, that we are strictly obliged to seek every other means of preservation, rather than to put his person in danger." This is done by have a body of supposed trustworthy people in offices who are looking out for the citizen's best interest and The Constitution, that they have the power to temporarily or permanently remove an officer from government. This power is the Impeachment power, as well as the incompetency power.)
§ 55. Of ministers.
What has been said is sufficient for the intention of this work: the reader may see these questions treated more at large in many books that are well known. We shall conclude this subject with an important observation. A sovereign is undoubtedly allowed to employ ministers to ease him in the painful offices of government; but he ought never to surrender his authority to them. When a nation chooses a conductor, it is not with a view that he should deliver up his charge into other hands.
Ministers ought only to be instruments in the hands of the prince; he ought constantly to direct them, and continually endeavor to know whether they act according to his intentions. If the imbecility of age. or any infirmity, render him incapable of governing, a regent ought to be nominated, according to the laws of the state: but when once the sovereign is capable of holding the reins, let him insist on being served, but never suffer himself to be superseded. The last kings of France of the first race surrendered to government and authority to the mayors of the palace: thus becoming mere phantoms, they justly lost the title and honors of a dignity of which they had abandoned the functions. The nation has every thing to gain in crowning an all-powerful minister, for he will improve that soil as his own inheritance, which he plundered whilst he only reaped precarious advantages from it.
(K, Notes: This is interesting, "The nation has every thing to gain in crowning an all-powerful minister, for he will improve that soil as his own inheritance, which he plundered whilst he only reaped precarious advantages from it." Interesting, in that, since the Vattel times, we have seen king after king and queen after queen do more damage to their nation than good.
Even a body of registered voters, who remain ignorant of the nation's design, may destroy the very country they depend upon for their continued survival.)
CHAPTER 5: Of States Elective, Successive or Hereditary, and of Those Called Patrimonial
§ 56 Of elective states.
WE have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to choose the person by whom it is to be governed. If it confers the sovereignty on him for his own person only, reserving to itself the right of choosing a successor after the sovereign's death, the state is elective. As soon as the prince is elected according to the laws, he enters into the possession of all the prerogatives which those laws annex to his dignity.
(K. Notes: This is an interesting sentence, "WE have seen in the preceding chapter, that it originally belongs to a nation to confer the supreme authority, and to choose the person by whom it is to be governed." Interesting, because in these united States of America, the body of the governed people have retained the Sovereign Authority, delegating to elected government officers certain powers to exercise on behalf of the people in their jurisdiction.
This is proved in The Declaration's 2nd Paragraph, government get their power from the people, and that the people posses the right to alter or abolish that government that fails to secure their rights.
This is also present in The Constitution, Preamble, where the people ordain The Constitution; Amendment 9, where all the peoples' rights not listed are protected against ANY government interference from any level or branch; and Amendment 10, that tells the government that they do not possess any power unless the people first frant that power to the.)
§ 57. Whether elective kings are real sovereigns.
It has been debated, whether elective kings and princes are real sovereigns. But he who lays any stress on this circumstance must have only a very confused idea of sovereignty. The manner in which a prince obtains his dignity has nothing to do with determining its nature. We must consider, first, whether the nation itself forms an independent society (see chap 1), and secondly, what is the extent of the power it has intrusted to the prince. Whenever the chief of an independent state really represents his nation, he ought to be considered as a true sovereign (§ 40), even though his authority should be limited in several respects.
(K. Noted: Based on the 1756 definition for Sovereign; as we see below; it is Vattel who "must have only a very confused idea of sovereignty".
As we see, SOVEREIGN is defined as: "1: Supreme in power; having no superior."
Specific to these united States of America, that political entity that is Supreme in power, and has no superior is that of the body of the people, called the governed. This body may giver or withhold their consent. The give or withhold consent by way of voting.
Therefore, it now is, the majority of the total body of registered voters that is THE SOVEREIGN within these united States of America. But... this sovereignty is limited by contract. The Contract is The unanimous Declaration of the thirteen united States of America. The contract may be amended by a unanimous vote of all the States in the union, at the time the amendment process has started.
Our government officers, not even the President can ever be see as a sovereign entity, as all offices are merely at the pleasure of the body of registered voters, which is The Sovereign in our nation.)
§ 58. Of successive and hereditary states. The origin of the right of succession.
When a nation would avoid the troubles which seldom fail to accompany the election of a sovereign, it makes its choice for a long succession of years, by establishing the right of succession, or by rendering the crown hereditary in a family, according to the order and rules that appear most agreeable to that nation. The name of an Hereditary State or Kingdom is given to that where the successor is appointed by the same law that regulates the successions of individuals. The Successive Kingdom is that where a person succeeds according to a particular fundamental law of the state. Thus the lineal succession, and of males alone, is established in France.
§ 59. Other origin of that right.
The right of succession is not always the primitive establishment of a nation; it may have been introduced by the concession of another sovereign, and even by usurpation. But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful, though the source be vicious. It rests then on the foundation we have already pointed out — a foundation that alone is lawful and incapable of being shaken, and to which we must ever revert.
(K, Notes: This is a curious comment; " But when it is supported by long possession, the people are considered as consenting to it; and this tacit consent renders it lawful". Curious, in that if a people are conquered and unable to resist an unjust ruler, it may be some years or generations before they unify enough to take back their right to rule themselves.
Vattel seems to be claiming that might, makes right. This seems to have never set well in humanity — except for those who exercise an unjust taking from others.)
§ 60. Other sources, which still amount to the same thing.
The same right, according to Grotius and the generality of writers, may be derived from other sources, as conquest, or the right of a proprietor, who, being master of a country, should invite inhabitants to settle there, and give them lands, on condition of their acknowledging him and his heirs for their sovereigns. But as it is absurd to suppose that a society of man can place themselves in subjection otherwise than with a view to their own safety and welfare, and still more that they can bind their posterity on any other footing, it ultimately amounts to the same thing; and it must still be said that the succession is established by the express will, or the tacit consent of the nation, for the welfare and safety of the state.
§ 61. A nation may change the order of the succession.
It thus remains an undeniable truth, that in all cases the succession is established or received only with a view to the public welfare and the general safety. If it happened then that the order established in this respect became destructive to the state, the nation would certainly have a right to change it by a new law. Salus populi supreme lex, the safety of the people is the supreme law; and this law is agreeable to the strictest justice, the people having united in society only with a view to their safety and greater advantage.
(K. Notes: But they are only able to do this when unified. But even unification may need outside assistance from other countries.
With "the safety of the people is the supreme law;" the big QUESTION is this: Is it the government officers or the people who get to decide that, which in is their best interest?
All too frequently we hear government officers proclaiming that they violated The Constitutional Limits against their power — because the offer has declared that it is in the best interest of the people. Only later, leaving the people scratching their heads, wondering how they lost even more of their rights.
In whatever the case; it must be the body of the people-governed who decide what truly is in their best interests.)
This pretended proprietary right attributed to princes is a chimera, produced by an abuse which its supporters would fain make of the laws respecting private inheritances. The state neither is nor can be a patrimony, since the end of patrimony is the advantage of the possessor, whereas the prince is established only for the advantage of the state. The consequence is evident: if a nation plainly perceives that the heir of her prince would be a pernicious sovereign, she has a right to exclude him.
The authors, whom we oppose, grant this right to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the care of their own safety, and the right to govern themselves, still essentially belong to the society, although they have intrusted them, even without any express reserve, to a monarch and his heirs. In their opinion, the kingdom is the inheritance of the prince, in the same manner as his field and his flocks — a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age, if it had not the support of an authority which too often proves stronger than reason and justice.
§ 62. Of Renunciations.
A nation may, for the same reason, oblige one branch who removes to another country, to renounce all claim to the crown, as a daughter who marries a foreign prince These renunciations, required or approved by the state, are perfectly valid, since they are equivalent to a law that such persons and their posterity should be excluded from the throne. Thus the laws of England have for ever rejected every Roman Catholic. "Thus a law of Russia, made at the beginning of the reign of Elizabeth, most wisely excludes from the possession of the crown every heir possessed of another monarchy; and thus the law of Portugal disqualifies every foreigner who lays claim to the crown by right of blood."
Some celebrated authors, in other respects very learned and judicious, have then deviated from the true principles in treating of renunciations. They have largely expatiated on the rights of children born or to be born, of the transmission of those rights, etc. But they ought to have considered the succession less as a property of the reigning family, than as a law of the state. From this clear and incontestable principle, we easily deduce the whole doctrine of renunciations. Those required or approved by the state are valid and sacred: they are fundamental laws: those not authorized by the state can only be obligatory on the prince who made them. They cannot injure his posterity, and he himself may recede from them in case the state stands in need of him and gives him an invitation: for he owes his services to a people who had committed their safety to his care. For the same reason, the prince cannot lawfully resign at an unseasonable juncture, to the detriment of the state, and abandon in imminent danger a nation that had put itself under his care.
§ 63. The order of succession ought commonly to be observed.
In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendant ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. "What a door would this open for usurpers or malcontents! It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done, since by this means no more is required than his being the king's son and his being actually alive, which can admit of no dispute: but, on the other hand, there is no rule fixed to judge of the capacity or incapacity to reign." Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir-apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it.
These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practiced in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king's name.
(K. Notes: Unfortunately, this concept; "there is no rule fixed to judge of the capacity or incapacity to reign" is practiced with regular elections within these united States of America.
Although the "successful" candidate will swear oath to The Constitution; the voters, at present, require that the candidate display any knowledge about how to use that Constitution to successfully perform their duties.
We require the oath be administered, but it is an empty oath — especially when no one enforces it against the people who violate it.)
§ 64. Regents.
In ordinary cases, when the state may follow the established rule without being exposed to very great and manifest danger, it is certain that every descendant ought to succeed when the order of succession calls him to the throne, however great may appear his incapacity to rule by himself. This is a consequence of the spirit of the law that established the succession: for the people had recourse to it only to prevent the troubles which would otherwise be almost inevitable at every change. Now little advances would have been made towards obtaining this end, if, at the death of a prince, the people were allowed to examine the capacity of his heir, before they acknowledged him for their sovereign. "What a door would this open for usurpers or malcontents! It was to avoid these inconveniences that the order of succession was established; and nothing more wise could have been done, since by this means no more is required than his being the king's son and his being actually alive, which can admit of no dispute: but, on the other hand, there is no rule fixed to judge of the capacity or incapacity to reign." Though the succession was not established for the particular advantage of the sovereign and his family, but for that of the state, the heir-apparent has nevertheless a right, to which justice requires that regard should be paid. His right is subordinate to that of the nation, and to the safety of the state; but it ought to take place when the public welfare does not oppose it.
These reasons have the greater weight, since the law or the state may remedy the incapacity of the prince by nominating a regent, as is practiced in cases of minority. This regent is, during the whole time of his administration, invested with the royal authority; but he exercises it in the king's name.
(K. Notes: Unfortunately, this concept; "there is no rule fixed to judge of the capacity or incapacity to reign" is practiced with regular elections within these united States of America.
Although the "successful" candidate will swear oath to The Constitution; the voters, at present, require that the candidate display any knowledge about how to use that Constitution to successfully perform their duties.
We require the oath be administered, but it is an empty oath — especially when no one enforces it against the people who violate it.)
§ 65. Indivisibility of sovereignties.
The principles we have just established respecting the successive or hereditary right, manifestly show that a prince has no right to divide his state among his children. Every sovereignty, properly so called, is, in its own nature, one and indivisible, since those who have united in society cannot be separated in spite of themselves. Those partitions, so contrary to the nature of sovereignty and the preservation of states, have been much in use; but an end has been put to them, wherever the people, and princes themselves, have had a clear view of their greatest interest, and the foundation of their safety.
But when a prince has united several different nations under his authority, his empire is then properly an assemblage of several societies subject to the same head; and there exists no natural objection to his dividing them among his children: he may distribute them, if there be neither law nor compact to the contrary, and if each of those nations consents to receive the sovereign he appoints for it. For this reason, France was divisible under the first two races. But being entirely consolidated under the third, it has since been considered as a single kingdom; it has become indivisible, and a fundamental law has declared it so. That law, wisely providing for the preservation and splendor of the kingdom, irrevocably unites to the crown all the acquisitions of its kings.
§ 66. Who are to decide disputes respecting the succession to a sovereignty.
The same principles will also furnish us with the solution of a celebrated question. When the right of succession becomes uncertain in a successive or hereditary state, and two or three competitors lay claim to the crown, it is asked, "Who shall be the judge of their pretensions?" Some learned men, resting on the opinion that sovereigns are subject to no other judge but God, have maintained that the competitors for the crown, while their right remains uncertain, ought either to come to an amicable compromise, enter into articles among themselves, choose arbitrators, have recourse even to the drawing of lots, or, finally, determine the dispute by arms; and that the subjects cannot in any manner decide the question. One might be astonished that celebrated authors should have maintained such a doctrine. But since, even in speculative philosophy, there is nothing so absurd as not to have been advanced by one or other of the philosophers, what can be expected from the human mind, when seduced by interest or fear? What! in a question that concerns none so much as the nation — that relates to a power established only with a view to the happiness of the people — in a quarrel that is to decide for ever their dearest interests, and their very safety — are they to stand by as unconcerned spectators? Are they to allow strangers, or the blind decision of arms, to appoint them a master, as a flock of sheep are to wait till it be determined whether they are to be delivered up to the butcher, or restored to the care of their shepherd?
But, say they, the nation has divested itself of all jurisdiction, by giving itself up to a sovereign; it has submitted to the reigning family; it has given to those who are descended from that family a right which nobody can take from them; it has established them its superiors, and can no longer judge them. Very well! But does it not belong to that same nation to acknowledge the person to whom its duty binds it, and prevent its being delivered up to another? And since it has established the law of succession, who is more capable or has a better right to identify the individual whom the fundamental law had in view, and has pointed out as the successor? We may affirm, then, without hesitation, that the decision of this grand controversy belongs to the nation, and to the nation alone. For even if the competitors have agreed among themselves, or have chosen arbitrators, the nation is not obliged to submit to their regulations, unless it has consented to the transaction or compromise — princes not acknowledged, and whose right is uncertain, not being in any manner able to dispose of its obedience. The nation acknowledges no superior judge in an affair that relates to its most sacred duties and most precious rights.
Grotius and Pufendorf differ in reality but little from our opinion; but would not have the decision of the people or state called a juridical sentence (judicium jurisdictionis). Well! be it so: we shall not dispute about words. However, there is something more in the case than a mere examination of the competitors' rights, in order to submit to him who has the best. All the disputes that arise in society are to be judged and decided by the public authority. As soon as the right of succession is found uncertain, the sovereign authority returns for a time to the body of the state, which is to exercise it, either by itself or by its representatives, till the true sovereign be known. "The contest on this right suspending the functions in the person of the sovereign, the authority naturally returns to the subjects, not for them to retain it, but to prove on which of the competitors it lawfully devolves, and then to commit it to his hands. It would not be difficult to support, by an infinite number of examples, a truth so evident by the light of reason: it is sufficient to remember that the states of France, after the death of Charles the Fair, terminated the famous dispute between Philip de Valois and the king of England (Edward III.), and that those states, though subject to him in whose favor they granted the decision, were nevertheless the judges of the dispute."
Buicciardini, book xii., also shows that it was the states of Arragon that decided the succession to that kingdom, in favor of Ferdinand, grandfather of Ferdinand the husband of Isabella, queen of Castile, in preference to the other relations of Martin, king of Arragon, who asserted that the kingdom belonged to them.
In the kingdom of Jerusalem also, it was the states that decided the disputes of those who made pretensions to it; as is proved by several examples in the foreign political history.
The states of the principality of Neufchatel have often, in the form of a juridical sentence, pronounced on the succession to the sovereignty. In the year 1707, they decided between a great number of competitors, and their decision in favor of the king of Prussia was acknowledged by all Europe in the treaty of Utrecht.
§ 67. The right of succession not to depend on the judgment of a foreign power.
The better to secure the succession in a certain and invariable order, it is at present an established rule in all Christian states (Portugal excepted), that no descendant of the sovereign can succeed to the crown, unless he be the issue of a marriage that is conformable to the laws of the country. As the nation has established the succession, to the nation alone belongs the power of acknowledging those who are capable of succeeding; and consequently, on its judgment and laws alone must depend the validity of the marriage of its sovereigns and the legitimacy of their birth.
If education had not the power of familiarizing the human mind to the greatest absurdities, is there any man of sense who would not be struck with astonishment to see so many nations suffer the legitimacy and right of their princes to depend on a foreign power? The court of Rome has invented an infinite number of obstructions and cases of invalidity in marriages, and at the same time arrogates to itself the right of judging of their validity, and of removing the obstructions; so that a prince of its communion cannot in certain cases by so much his own master as to contract a marriage necessary to the safety of the state. Jane, the only daughter of Henry IV., king of Castile, found this true by cruel experience. Some rebels published abroad that she owed her birth to Bertrand de la Cueva, the king's favorite; and notwithstanding the declarations and last will of that prince, who explicitly and invariably acknowledged Jane for his daughter, and nominated her his heiress, they called to the crown Isabella, Henry's sister, and wife to Ferdinand, heir of Arragon. The grandees of Jane's party had provided her a powerful resource, by negotiating a marriage between her and Alphonsus, king of Portugal: but as that prince was Jane's uncle, it was necessary to obtain a dispensation from the pope; and Pius II., who was in the interest of Ferdinand and Isabella, refused to grant the dispensation, though such alliances were then very common. These difficulties cooled the ardor of the Portuguese monarch, and abated the zeal of the faithful Castilians. Everything succeeded with Isabella, and the unfortunate Jane took the veil in order to secure, by this heroic sacrifice, the peace of Castile.
If the prince proceeds and marries, notwithstanding the pope's refusal, he exposes his dominions to the most fatal troubles. What would have become of England, if the Reformation had not been happily established, when the pope presumed to declare Queen Elizabeth illegitimate, and incapable of wearing the crown?
A great emperor, Lewis of Bavaria, boldly asserted the rights of his crown in this respect. In the diplomatic code of the law of nations by Leibnitz, we find two acts, in which that prince condemns, as an invasion of the imperial authority, the doctrine that attributes to any other power but his own, the right of granting dispensations, and of judging of the validity of marriages, in the places under his jurisdiction: but he was neither well supported in his lifetime, nor imitated by his successors.
§ 68. States called patrimonial.
Finally, there are states whose sovereign may choose his successor, and even transfer the crown to another during his life: these are commonly called patrimonial kingdoms or states: but let us reject so unjust and so improper an epithet, which can only serve to inspire some sovereigns with ideas very opposite to those they ought to entertain. We have shown (§ 61) that a state cannot be a patrimony. But it may happen that a nation, either through unbounded confidence in its prince, or for some other reason, has intrusted him with the care of appointing his successor, and even consented to receive, if he thinks proper, another sovereign from his hands. Thus we see that Peter I., emperor of Russia nominated his wife to succeed him, though he had children.
§ 69. Every true sovereignty is unalienable.
But when a prince chooses his successor, or when he cedes the crown to another, — properly speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, intrusted — he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. Every true sovereignty is, in its own nature, unalienable. We shall be easily convinced of this, if we pay attention to the origin and end of political society, and of the supreme authority. A nation becomes incorporated into a society, to labor for the common welfare as it shall think proper, and to live according to its own laws. With this view it establishes a public authority. If it intrusts that authority to a prince, even with the power of transferring it to other hands, this can never take place without the express and unanimous consent of the citizens, with the right of really alienating or subjecting the state to another body politic: for the individuals who have formed this society, entered into it in order to live in an independent state, and not under a foreign yoke. Let not any other source of this right be alleged in objection to our argument, as conquest, for instance; for we have already shown (§ 60) that these different sources ultimately revert to the true principles on which all just governments are founded. While the victor does not treat his conquest according to those principles, the state of war still in some measure subsists: but the moment he places it in a civil state, his rights are proportioned by the principles of that state.
I know that many authors, and particularly Grotius, give long enumerations of the alienations of sovereignties. But the examples often prove only the abuse of power, not the right. And besides, the people consented to the alienation, either willingly or by force. What could the inhabitants of Pergamus, Bithynia, and Cyrene do, when their kings gave them, by their last wills, to the Roman people? Nothing remained for them, but to submit with a good grace to so powerful a legatee. To furnish an example capable of serving as an authority, they should have produced an instance of a people resisting a similar bequest of their sovereign, and whose resistance had been generally condemned as unjust and rebellious. Had Peter I., who nominated his wife to succeed him, attempted to subject his empire to the grand seignior, or to some other neighboring power, can we imagine that the Russians would have suffered it, or that their resistance would have passed for a revolt? We do not find in Europe any great state that is reputed alienable. If some petty principalities have been considered as such, it is because they were not true sovereignties. They were fiefs of the empire, enjoying a greater or less degree of liberty: their masters made a traffic of the rights they possessed over those territories: but they could not withdraw them from a dependence on the empire.
(K. Notes: "And besides, the people consented to the alienation, either willingly or by force" Consent can never be done by force or other forms of coercion. Consent is always given freely by the giver. Any forced 'agreement' is no agreement at all, and is especially not a form of consent.)
Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, the right of really alienating the state can never belong to the sovereign, unless it be expressly given him by the entire body of the people. Neither are we to presume that he possesses a right to nominate his successor or surrender the scepter to other hands, — a right which must be founded on an express consent, on a law of the state, or on long custom, justified by the tacit consent of the people.
(K. Notes: "tacit consent of the people"? Fortunately, with respect to these united States of America, this concept of tacit consent does not exist.
§ 70. Duty of a prince who is empowered to nominate his successor.
If the power of nominating his successor is intrusted to the sovereign, he ought to have no other view in his choice but the advantage and safety of the state. He himself was established only for this end (§ 39); the liberty of transferring his power to another could then be granted to him only with the same view. It would be absurd to consider it as a prerogative useful to the prince, and which he may turn to his own private advantage. Peter the Great proposed only the welfare of the empire when he left the crown to his wife. He knew that heroine to be the most capable person to follow his views, and perfect the great things he had begun, and therefore preferred her to his son, who was still too young. If we often found on the throne such elevated minds as Peter's, a nation could not adopt a wiser plan, in order to ensure to itself a good government, than to instruct the prince, by a fundamental law, with the power of appointing his successor. This would be a much more certain method than the order of birth. The Roman emperors, who had no male children, appointed a successor by adoption. To this custom Rome was indebted for a series of sovereigns unequaled in history, — Nerva, Trajan, Adrian, Antoninus, Marcus Aurelius. What princes! Does the right of birth often place such on the throne?
§ 71. His nomination must be sanctioned by at least the tacit ratification of the people.
We may go still farther, and boldly assert, that, as the safety of the whole nation is deeply interested in so important a transaction, the consent and ratification of the people or state is necessary to give it full and entire effect, — at least their tacit consent and ratification. If an emperor of Russia thought proper to nominate for his successor a person notoriously unworthy of the crown, it is not at all probable that vast empire would blindly submit to so pernicious an appointment. And who shall presume to blame a nation for refusing to run headlong to ruin out of respect to the last orders of its prince? As soon as the people submit to the sovereign appointed to rule over them, they tacitly ratify the choice made by the last prince; and the new monarch enters into all the rights of his predecessor.
CHAPTER 6: Principal Objects of a Good Government; and First to Provide for the Necessities of the Nation
§ 72. The object of society points out the duties of the sovereign.
AFTER these observations on the constitution of the state, let us now proceed to the principal objects of a good government. We have seen above (§§ 41 and 42) that the prince, on his being invested with the sovereign authority, is charged with the duties of the nation in relation to government. In treating of the principal objects of a wise administration, we at once show the duties of a nation towards itself, and those of the sovereign towards his people.
A wise conductor of the state will find in the objects of civil society the general rule and indication of his duties. The society is established with the view of procuring, to those who are its members, the necessaries, conveniences, and even pleasures of life, and, in general, every thing necessary to their happiness, — of enabling each individual peaceably to enjoy his own property, and to obtain justice with safety and certainty, — and, finally, of defending themselves in a body against all external violence (§ 15). The nation, or its conductor, should first apply to the business of providing for all the wants of the people, and producing a happy plenty of all the necessaries of life, with its conveniences and innocent and laudable enjoyments. As an easy life without luxury contributes to the happiness of men, it likewise enables them to labor with greater safety and success after their own perfection, which is their grand and principal duty, and one of the ends they ought to have in view when they unite in society.
(K. Notes: Vattel does error in, " The nation, or its conductor, should first apply to the business of providing for all the wants of the people". It never should be the business of govrenment to supply the wants of the people. However, the business of government should be such as helping make certain that the unjust barriers are dealt with in the individual/s pursuit of those thingd that do make them happy.)
§ 73. to take care that there be a sufficient number of workmen.
To succeed in procuring this abundance of every thing, it is necessary to take care that there be a sufficient number of able workmen in every useful or necessary profession. An attentive application on the part of government, wise regulations, and assistance properly granted, will produce this effect without using constraint, which is always fatal to industry.
(K. Notes: That also to make certain that there are not too many workman. When there are too many workmen and not enough enough work, the idle hands will find other industry, which unrests a society.)
§ 74. to prevent the emigration of those that are useful.
Those workmen that are useful ought to be retained in the state; to succeed in retaining them, the public authority has certainly a right to use constraint, if necessary. Every citizen owes his personal services to his country; and a mechanic, in particular, who has been reared, educated, and instructed in its bosom, cannot lawfully leave it, and carry to a foreign land that industry which he acquired at home, unless his country has no occasion for him, or he cannot there obtain the just fruit of his labor and abilities. Employment must then be procured for him; and, if, while able to obtain a decent livelihood in his own country, he would without reason abandon it, the state has a right to detain him. But a very moderate use ought to be made of this right, and only in important or necessary cases. Liberty is the soul of abilities and industry: frequently a mechanic or an artist, after having long traveled abroad, is attracted home to his native soil by a natural affection, and returns more expert and better qualified to render his country useful services. If certain extraordinary cases be excepted, it is best in this affair to practice the mild methods of protection, encouragement, etc., and to leave the rest to that natural love felt by all men for the places of their birth.
(K. Notes: Vattel's though about "to succeed in retaining them, the public authority has certainly a right to use constraint," can never work in a truly free society. For how can a person enjoy their freedom, if they are prohibited from taking their skills to more profitable pastures / countries?
Yes, especially with those skills and services necessary to a nation's security, government officers should take all reasonable precautions to entice these people to remain. But if forced, that force may create a traitor, where no traitor intended to exist.
While on this note of retaining workers; it is wise to limit the immigration of foreign workers into a country, especially when they displace citizens, leaving their minds and hands idle for works against society.)
§ 75. Emissaries who entice them away.
As to those emissaries who come into a country to entice away useful subjects, the sovereign has a right to punish them severely, and has just cause of complaint against the power by whom they are employed.
In another place, we shall treat more particularly of the general question, whether a citizen be permitted to quit the society of which he is a member. The particular reasons concerning useful workmen are sufficient here.
(K. Notes: Vattel has already addressed the issue of whether or not an individual possesses the right to quit a society. Whether a member of society is 'useful' or otherwise; it violates natural law to prohibit a person from quitting a society of which they no longer feel needed, equally protected, or simply desirous of leaving.
Forced membership abolishes the over all freedom of all citizens.)
§ 76. Labour and industry must be encouraged.
The state ought to encourage labor, to animate industry, to excite abilities, to propose honors, rewards, privileges, and so to order matters that every one may live by his industry. In this particular, England deserves to be held up as an example. The parliament incessantly attends to these important affairs, in which neither care nor expense is spared. And do we not even see a society of excellent citizens formed with this view, and devoting considerable sums to this use? Premiums are also distributed in Ireland to the mechanics who most distinguish themselves in their profession. Can such a state fail of being powerful and happy?
(K. Notes: When the rewards from ones chosen industry are sufficient to supply one's desired happiness levels, it costs government nothing to keep that person employed within the nation.)
CHAPTER 7: Of The Cultivation of The Soil
§ 77. The utility of tillage.
OF all the arts, tillage, or agriculture, is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase; it forms the surest resource and the most solid fund of riches and commerce, for a nation that enjoys a happy climate.
(K. Notes: That the united States of America learned, rather was taught, a long time a go that the soil must be maintained so as to snot strip it of all its nutrients, leaving desolate barren sand, only to become desert waste-lands.)
§ 78. Regulations necessary in that respect:—for the distribution of land.
This object then deserves the utmost attention of the government. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible. He ought not to allow either communities or private persons to acquire large tracts of land and leave them uncultivated. Those rights of common, which deprive the proprietor of the free liberty of disposing of his land — which will not allow him to enclose and cultivate it in the most advantageous manner; those rights, I say, are inimical to the welfare of the state and ought to be suppressed, or reduced to just bounds. Notwithstanding the introduction of private property among the citizens, the nation has still a right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible.
§ 79. for the protection of husbandmen.
The government ought carefully to avoid every thing capable of discouraging the husbandman, or of diverting him from the labors of agriculture. Those taxes — those excessive and ill-proportioned impositions, the burden of which falls almost entirely on the cultivators — and the oppressions they suffer from the officers who levy them — deprive the unhappy peasant of the means of cultivating the earth, and depopulate the country. Spain is the most fertile and the worst cultivated country in Europe. The church there possesses too much land; and the contractors for the royal magazines, being authorized to purchase, at a low price, all the corn they find in the possession of a peasant, above what is necessary for the subsistence of himself and his family, so greatly discourage the husbandman, that he sows no more corn than is barely necessary for the support of his own household. Hence the frequent scarcity in a country capable of feeding its neighbors.
§ 80. Husbandry ought to be placed in an honourable light.
Another abuse injurious to agriculture is the contempt cast upon the husbandman. The tradesmen in cities — even the most servile mechanics — the idle citizens — consider him that cultivates the earth with a disdainful eye; they humble and discourage him; they dare to despise a profession that feeds the human race — the natural employment of man. A little insignificant haberdasher, a tailor, places far beneath him the beloved employment of the first consuls and dictators of Rome! China has wisely prevented this abuse: agriculture is there held in honor; and to preserve this happy mode of thinking, the emperor himself, followed by his whole court, annually, on a solemn day, sets his hand to the plough, and sows a small piece of land. Hence China is the best cultivated country in the world; it feeds an immense multitude of inhabitants who at first sight appear to the traveler too numerous for the space they occupy.
§ 81. Cultivation of the soil a natural obligation.
The cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind. The whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries, or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries. Those nations (such as the ancient Germans, and some modern Tartars) who inhabit fertile countries, but disdain to cultivate their lands and choose rather to live by plunder, are wanting to themselves, are injurious to all their neighbors, and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labor, choose to live only by hunting, and their flocks. This might, doubtless, be allowed in the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the human race is so greatly multiplied, it could not subsist if all nations were disposed to live in that manner. Those who still pursue this idle mode of life, usurp more extensive territories than, with a reasonable share of labor, they would have occasion for, and have, therefore, no reason to complain, if other nations, more industrious and too closely confined, come to take possession of a part of those lands. Thus, though the conquest of the civilized empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them.
(K. Notes: From time to time, Vattel conflicts with himself. This instance, he states, "The people of those extensive tracts rather ranged through than inhabited them." Who is to dictate to a society how they are to manage their resources?
If the society desires lots of meat and lots of foraged foods; and little farmed foods; what country has right to declare that land is wasted, simply because it could be farmed or used for other purposes. Such attitudes would be that if your country enjoys large amounts of tea, and therefore devotes lots of and for growing tea; my society of greater force may dictate to you that tea is wasting those land resources.)
§ 82. Public granaries.
The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman's hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all; for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbors, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest, which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad: but it will be sent at a higher and fairer price.
CHAPTER 8: Of Commerce
§ 83. Of home and foreign trade.
IT is commerce that enables individuals and whole nations to procure those commodities which they stand in need of, but cannot find at home. Commerce is divided into home and foreign trade. The former is that carried on in the state between the several inhabitants; the latter is carried on with foreign nations.
§ 84. Utility of domestic trade.
The home trade of a nation is of great use; it furnishes all the citizens with the means of procuring whatever they want, as either necessary, useful, or agreeable; it causes a circulation of money, excites industry, animates labor, and, by affording subsistence to a great number of people, contributes to increase the population and power of the state.
§ 85. Utility of foreign trade.
The same reasons show the use of foreign trade, which is moreover attended with these two advantages: — 1. By trading with foreigners, a nation procures such things as neither nature nor art can furnish in the country it occupies. And secondly, if its foreign trade be properly directed, it increases the riches of the nation, and may become the source of wealth and plenty. Of this the example of the Carthaginians among the ancients, and that of the English and Dutch among the moderns, afford remarkable proofs. Carthage, by her riches, counterbalanced the fortune, courage, and greatness of Rome. Holland has amassed immense sums in her marshes; a company of her merchants possesses whole kingdoms in the East, and the governor of Batavia exercises command over the monarchs of India. To what a degree of power and glory has England arrived! Formerly her warlike princes and inhabitants made glorious conquests, which they afterwards lost by those reverses of fortune so frequent in war; at present, it is chiefly commerce that places in her hand the balance of Europe.
§ 86. Obligation to cultivate domestic trade.
Nations are obliged to cultivate the home trade, — first, because it is clearly demonstrated from the law of nature, that mankind ought mutually to assist each other, and, as far as in their power, contribute to the perfection and happiness of their fellow-creatures: whence arises, after the introduction of private property, the obligation to resign to others, at a fair price, those things which they have occasion for, and which we do not destine for our own use. Secondly, society being established with a view that each may procure whatever things are necessary to his own perfection and happiness — and a home trade being the means of obtaining them — the obligations to carry on and improve this trade are derived from the very compact on which the society was formed. Finally, being advantageous to the nation, it is a duty the people owe to themselves, to make this commerce flourish.
§ 87. Obligation to carry on foreign trade.
For the same reason, drawn from the welfare of the state, and also to procure for the citizens every thing they want, a nation is obliged to promote and carry on a foreign trade. Of all the modern states, England is most distinguished in this respect. The parliament have their eyes constantly fixed on this important object; they effectually protect the navigation of the merchants, and, by considerable bounties, favor the exportation of superfluous commodities and merchandises. In a very sensible product, may be seen the valuable advantages that kingdom has derived from such judicious regulations.
§ 88. Foundation of the laws of commerce:—right of purchasing.
Let us now see what are the laws of nature and the rights of nations in respect to the commerce they carry on with each other. Men are obliged mutually to assist each other as much as possible, and to contribute to the perfection and happiness of their fellow-creatures (Prelim. § 10); whence it follows, as we have said above (§ 86), that, after the introduction of private property, it became a duty to sell to each other, at a fair price, what the possessor himself has no occasion for, and what is necessary to others; because, since that introduction of private property, no one can, by any other means, procure the different things that may be necessary or useful to him, and calculated to render life pleasant and agreeable. Now, since right springs from obligation (Prelim. § 3), the obligation which we have just established gives every man the right of procuring the things he wants, by purchasing them at a reasonable price from those who have themselves no occasion for them. We have also seen (Prelim. § 5) that men could not free themselves from the authority of the laws of nature by uniting in civil society, and that the whole nation remains equally subject to those laws in its national capacity; so that the natural and necessary law of nations is no other than the law of nature properly applied to nations or sovereign states (Prelim. § 6): from all which it follows, that a nation has a right to procure, at an equitable price, whatever articles it wants, by purchasing them of other nations who have no occasion for them. This is the foundation of the right of commerce between different nations, and, in particular, of the right of buying.
§ 89. Right of selling.
We cannot apply the same reasoning to the right of selling such things as we want to part with. Every man and every nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another' the law of nature gives to no person whatsoever any kind of right to sell what belongs to him to another who does not wish to buy it; neither has any nation the right of selling her commodities or merchandise to a people who are unwilling to have them.
§ 90. Prohibition of foreign merchandises.
Every state has consequently a right to prohibit the entrance of foreign merchandises; and the nations that are affected by such prohibition have no right to complain of it, as if they had been refused an office of humanity. Their complaints would be ridiculous, since their only ground of complaint would be, that a profit is refused to them by that nation who does not choose they should make it at her expense, It is, however, true, that if a nation was very certain that the prohibition of her merchandises was not founded on any reason drawn from the welfare of the state that prohibited them, site would have cause to consider this conduct as a mark of ill-will shown in this instance, and to complain of it on that footing. But it would be very difficult for the excluded nation to judge with certainty that the state had no solid or apparent reason for making such a prohibition.
§ 91. Nature of the right of purchasing.
By the manner in which we have shown a nation's right to buy of another what it wants, it is easy to see that this right is not one of those called perfect, and that are accompanied with a right to use constraint. Let us now distinctly explain the nature of a right which may give room for disputes of a very serious nature. You have a right to buy of others such things as you want, and of which they themselves have no need; you make application to me: I am not obliged to sell them to you, if I myself have any occasion for them. In virtue of the natural liberty which belongs to all men, it is I who am to judge whether I have occasion for them myself, or can conveniently sell them to you; and you have no right to determine whether I judge well, or ill, because you have no authority over me. If I, improperly, and without any good reason, refuse to sell you at a fair price what you want, I offend against my duty: you may complain of this, but you must submit to it: and you cannot attempt to force me, without violating my natural right, and doing me an injury. The right of buying the things we want is then only an imperfect right, like that of a poor man to receive alms of the rich man; if the latter refuses to bestow it, the poor man may justly complain: but he has no right to take it by force.
If it be asked, what a nation has a right to do in case of extreme necessity, — this question will be answered in its proper place in the following book, Chap. IX.
§ 92. Each nation to determine for herself how she will carry on commerce.
Since then a nation cannot have a natural right to sell her merchandises to another that is unwilling to purchase them, since she has only an imperfect right to buy what she wants of others, since it belongs only to these last to judge whether it be proper for them to sell or not; and finally, since commerce consists in mutually buying and selling all sorts of commodities, it is evident that it depends on the will of any nation to carry on commerce with another, or to let it alone. If she be willing to allow this to one, it depends on the nation to permit it under such conditions as she shall think proper. For in permitting another nation to trade with her, she grants that other a right; and every one is at liberty to affix what conditions he pleases to a right which he grants of his own accord.
§ 93. How a nation acquires a perfect right to a foreign trade.
Men and sovereign states may, by their promises, enter into a perfect obligation with respect to each other, in things where nature has imposed only an imperfect obligation. A nation, not having naturally a perfect right to carry on a commerce with another, may procure it by an agreement or treaty. This right is then acquired only by treaties, and relates to that branch of the law of nations termed conventional (Prelim. § 24). The treaty that gives the right of commerce, is the measure and rule of that right.
§ 94. Simple permission to carry on trade.
A simple permission to carry on commerce with a nation gives no perfect right to that commerce. For if I merely and simply permit you to do any thing, I do not give you any right to do it afterwards in spite of me: — you may make use of my condescension as long as it lasts; but nothing prevents me from changing my will. As then every nation has a right to choose whether she will or will not trade with another, and on what conditions she is willing to do it (§ 92), if one nation has for a time permitted another to come and trade in the country, she is at liberty, whenever she thinks proper, to prohibit that commerce — to restrain it — to subject it to certain regulations; and the people who before carried it on cannot complain of injustice.
Let us only observe, that nations, as well as individuals, are obliged to trade together for the common benefit of the human race, because mankind stand in need of each other's assistance (Prelim. §§ 10, 11, and Book I. § 88): still, however, each nation remains at liberty to consider, in particular cases, whether it be convenient for her to encourage or permit commerce; and as our duty to ourselves is paramount to our duty to others, if one nation finds herself in such circumstances that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it. This the Chinese have done for a long time together. But, again, it is only for very serious and important reasons that her duty to herself should dictate such a reserve; otherwise, she could not refuse to comply with the general duties of humanity.
§ 95. Whether commercial rights be subject to prescription.
We have seen what are the rights that nations derive from nature with regard to commerce, and how they may acquire others by treaties: let us now examine whether they can found any on long custom. To determine this question in a solid manner, it is necessary first to observe, that there are rights which consist in a simple power: they are called in Latin, jura meræ facultatis, rights of mere ability. They are such in their own nature that he who possesses them may use them or not, as he thinks proper — being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights are acts of mere free will, that may be done or not done, according to pleasure. It is manifest that rights of this kind cannot be lost by prescription, on account of their not being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it, as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it. ...
(K. Notes: Regarding " if I possess a right which is of such a nature that I may or may not use it, as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it." This applies in these united States in so far as that the people have done certain actions (rights) before the government passes a law restricting or prohibiting that right. The people have not forfeit that right, until such time they grant to government some power to limit that right. Even then, a future generation may adjust the government's powers regarding that right.)
... This right is then imprescriptible, unless I have been forbidden or hindered from making use of it, and have obeyed with sufficient marks of consent. Let us suppose, for instance, that I am entirely at liberty to grind my corn at any mill I please, and that during a very considerable time, a century if you please, I have made use of the same mill: as I have done in this respect what I thought proper, it is not to be presumed, from this long-continued use of the same mill, that I meant to deprive myself of the right of grinding at any other; and, consequently, my right cannot be lost by prescription. But now suppose, that, on my resolving to make use of another mill, the owner of the former opposes it, and announces to me a prohibition; if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it. ...
(K. Notes: regarding, "if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it."
Simply because a person finds no reason to object to demands made by another person today, and they comply; this does not void the person's right to make objections when it becomes more important to take such actions.)
.....— Let us apply these principles. — Since it depends on the will of each nation to carry on commerce with another, or not to carry it on, and to regulate the manner in which it chooses to carry it on (§ 92), the right of commerce is evidently a right of mere ability (jus merae facultatis), a simple power, and consequently is imprescriptible. Thus, although two nations have treated together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others: — they both preserve the double right of prohibiting the entrance of foreign merchandise, and of selling their own wherever people are willing to buy them. Although the English have from time immemorial been accustomed to get wine from Portugal, they are not on that account obliged to continue the trade, and have not lost the liberty of purchasing their wines elsewhere. Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty.
§ 96. Imprescriptibility of rights founded on treaty.
What has been just said may be applied to the rights of commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, she does not lose her right, though a great number of years are suffered to elapse without its being used; because this right is a simple power, jus merae facultatis, which she is at liberty to use or not, whenever she pleases.
ertain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with a view of procuring a species of merchandise of which she stands in need, and if the nation which obtained the right of selling neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege, — it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling would lose it, because she had not fulfilled the tacit condition.
§ 97. Monopolies, and trading companies with exclusive privileges.
Commerce is a common benefit to a nation; and all her members have an equal right to it. Monopoly, therefore, in general, is contrary to the rights of the citizens. However, this rule has its exceptions, suggested even by the interest of the nation: and a wise government may, in certain cases, justly establish monopolies. There are commercial enterprises that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well-supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen, in different countries, those powerful companies that carry on commerce with the East. When the subjects of the United Provinces established themselves in the Indies on the ruin of their enemies the Portuguese, individual merchants would not have dared to think of such an arduous enterprise; and the state itself, wholly taken up with the defense of its liberty against the Spaniards, had not the means of attempting it.
It is also certain beyond all doubt, that, whenever any individual offers, on condition of obtaining an exclusive privilege, to establish a particular branch of commerce or manufacture which the nation has not the means of carrying on, the sovereign may grant him such privilege.
But whenever any branch of commerce may be left open to the whole nation, without producing any inconvenience or being less advantageous to the state, a restriction of that commerce to a few privileged individuals is a violation of the rights of all the other citizens. And even when such a commerce requires considerable expenses to maintain forts, men of war, etc., this being a national affair, the state may defray those expenses, and, as an encouragement to industry, leave the profits of the trade to the merchants. This is sometimes done in England.
(K. Notes: As far as granted monopolies, if such grants take plce, they should be for a specific limited time; after which the industry becomes open to competition, which usually bnefits society with improved products and improved services.)
§ 98. Balance of trade, and attention of government in that respect.
The conductor of a nation ought to take particular care to encourage the commerce that is advantageous to his people, and to suppress or lay restraints upon that which is to their disadvantage. Gold and silver having become the common standard of the value of all the articles of commerce, the trade that brings into the state a greater quantity of these metals than it carries out, is an advantageous trade; and, on the contrary, that is a ruinous one, which causes more gold and silver to be sent abroad, than it brings home. This is what is called the balance of trade. The ability of those who have the direction of it, consists in making that balance turn in favor of the nation.
§ 99. Import duties.
Of all the measures that a wise government may take with this view, we shall only touch here on import duties. When the conductors of a state, without absolutely forcing trade, are nevertheless desirous of diverting it into other channels, they lay such duties on the merchandises they would discourage as will prevent their consumption. Thus, French wines are charged with very high duties in England, while the duties on Portugal are very moderate, — because England sells few of her productions to France, while she sells large quantities to Portugal. There is nothing in this conduct that is not very wise and extremely just; and France has no reason to complain of it — every nation having an undoubted right to make what conditions she thinks proper, with respect to receiving foreign merchandises, and being even at liberty to refuse taking them at all.
CHAPTER 9: Of the Care of the Public Ways of Communication, and the Right of Toll
§ 100. Utility of highways, canals, etc.
THE utility of highways, bridges, canals, and, in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and to obtain the preference; an attraction is held out to foreigners, whose merchandises are carried through the country, and diffuse wealth in all the places through which they pass. France and Holland feel the happy consequences of this from daily experience.
§ 101. Duty of government in that respect.
One of the principal things that ought to employ the attention of the government with respect to the welfare of the public in general, and of trade in particular, must then relate to the highways, canals, etc., in which nothing ought to be neglected to render them safe and commodious. France is one of those states where this duty to the public is discharged with the greatest attention and magnificence. Numerous patrols everywhere watch over the safety of travelers: magnificent roads, bridges, and canals, facilitate the communication between one province and another: — Lewis XIV. joined the two seas by a work worthy of the Romans.
§ 102. Its rights in that respect.
The whole nation ought, doubtless, to contribute to such useful undertakings. When therefore the laying out and repairing of highways, bridges, and canals, would be too great a burden on the ordinary revenues of the state, the government may oblige the people to labor at them, or to contribute to the expense. The peasants, in some of the provinces of France, have been heard to murmur at the labors imposed upon them for the construction of roads: but experience had no sooner made them sensible of their true interest, than they blessed the authors of the undertaking.
§ 103. Foundation of the right to demand toll.
The construction and preservation of all these works being attended with great expense, the nation may very justly oblige all those to contribute to them, who receive advantage from their use: this is the legitimate origin of the right of toll. It is just that a traveler, and especially a merchant, who receives advantage from a bridge, a canal, or a road, in his own passage, and in the more commodious conveyance of his merchandise, should help to defray the expense of these useful establishments, by a moderate contribution: and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular.
§ 104. Abuse of that right.
But a law so just in its origin frequently degenerates into great abuses. There are countries where no care is taken of the highways, and where nevertheless considerable tolls are exacted. A lord of a manor, who happens to possess a strip of land terminating on a river, there establishes a toll, though he is not at a farthing's expense in keeping up the navigation of the river, and rendering it convenient. This is a manifest extortion, and an infringement of the natural rights of mankind. For the division of lands, and their becoming private property, could never deprive any man of the right of passage, when not the least injury is done to the person through whose territory he passes. Every man inherits this right from nature, and cannot justly be forced to purchase it.
But the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce, People do not, however, submit without difficulty, except in the case of those tolls which are established by ancient usage: and the imposition of new ones is often a source of disputes. The Swiss formerly made war on the Dukes of Milan, on account of some oppressions of this nature. This right of tolls is also further abused, when the passenger is obliged to contribute too much, and what bears no proportion to the expense of preserving these public passages.
At present, to avoid all difficulty and oppression, nations settle these points by treaties.
CHAPTER 10: Of Money and Exchange
§ 105. Establishment of money.
IN the first ages, after the introduction of private property, people exchanged their superfluous commodities and effects for those they wanted. Afterwards gold and silver became the common standard of the value of all things: and to prevent the people from being cheated, the mode was introduced of stamping pieces of gold and silver in the name of the state, with the figure of the prince, or some other impression, as the seal and pledge of their value. This institution is of great use and infinite convenience: it is easy to see how much it facilitates commerce, — Nations or sovereigns cannot therefore bestow too much attention on an affair of such importance.
§ 106. Duty of the nation or prince with respect to the coin.
The impression on the coin becoming the seal of its standard and weight, a moment's reflection will convince us that the coinage of money ought not to be left indiscriminately free to every individual; for, by that means, frauds would become too common — the coin would soon lose the public confidence; and this would destroy a most useful institution. Hence money is coined by the authority and in the name of the state or prince, who are its surety; they ought, therefore, to have a quantity of it coined sufficient to answer the necessities of the country, and to take care that it be good, that is to say, that its intrinsic value bear a just proportion to its extrinsic or numerical value.
It is true, that, in a pressing necessity, the state would have a right to order the citizens to receive the coin at a price superior to its real value; but as foreigners will not receive it at that price, the nations gains nothing by this proceeding; it is only a temporary palliative for the evil, without effecting a radical cure. This excess of value, added in an arbitrary manner to the coin, is a real debt which the sovereign contracts with individuals: and, in strict justice, this crisis of affairs being over, that money ought to be called in at the expense of the state, and paid for in other specie, according to the natural standard: otherwise, this kind of burden, laid on in the hour of necessity, would fall solely on those who received this arbitrary money in payment, which would be unjust. Besides, experience has shown that such a resource is destructive to trade, by destroying the confidence both of foreigners and citizens — raising in proportion the price of every thing — and inducing every one to lock up or send abroad the good old specie; whereby a temporary stop is put to the circulation of money. So that it is the duty of every nation and of every sovereign to abstain, as much as possible, from so dangerous an experiment, and rather to have recourse to extraordinary taxes and contributions to support the pressing exigencies of the state.
(K. Notes: Regarding the flow of currency: The government being the source of currency and the regulator of its value would at the broadest umbrella National-Level of government, produce the currency. Where other government levels exist [states, counties, cities, towns, villages, etc.] each smaller level of government would receive from from the nation's treasury, those necessary funds to cover their shortages. These funds being available for a fee called interest. As with normal banking standards, those most trusted to repay on time and in full will receive the most favorable rates; while those least likely to repay on time, if at all the least favorable [or higher] rates.
To advance commerce, these smaller government levels will make funds available to commercial enterprises according to the same types of standards for repayment; lower rates for those most trustworthy and higher rates for slow payers.
This takes the commercial banker out of the picture, for the most part. However, this does not eliminate private money-lending as to what the market will bear.)
§ 107. Their rights in that respect.
Since the state is surely for the goodness of the money and its currency, the public authority alone has the right of coining it. Those who counterfeit it, violate the rights of the sovereign, whether they make it of the same standard and value or not. These are called false-coiners, and their crime is justly considered as one of the most heinous nature. For if they coin base money, they rob both the public and the prince; and if they coin good, they usurp the prerogative of the sovereign. They will never be inclined to coin good money unless there be a profit on the coinage: and in this case they rob the state of a profit which exclusively belongs to it. In both cases they do an injury to the sovereign; for the public faith being surety for the money, the sovereign alone has a right to have it coined. For this reason the right of coining is placed among the prerogatives of majesty, and Bodinus relates, that Sigismund Augustus, king of Poland, having granted this privilege to the duke of Prussia, in the year 1543, the states of the country passed a decree in which it was asserted that the king could not grant that privilege, it being inseparable from the crown. The same author observes, that, although many lords and bishops of France had formerly the privilege of coining money, it was still considered as coined by the king's authority: and the kings of France at last withdrew all those privileges, on account of their being often abused.
§ 108. How one nation may injure another in the article of coin.
From the principles just laid down, it is easy to conclude, that if one nation counterfeits the money of another, or if she allows and protects false-coiners who presume to do it, she does that nation an injury. But commonly criminals of this class find no protection anywhere — all princes being equally interested in exterminating them.
§ 109. Of Exchange, and the laws of commerce.
There is another custom more modern, and of no less use to commerce than the establishment of coin, namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other, at a very trifling expense, and, if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom, by good laws, in which every merchant, whether citizen or foreigner, may find security. In general, it is equally the interest and the duty of every nation to have wise and equitable commercial laws established in the country.
CHAPTER 11: Second Object of a Good Government, — to Procure the True Happiness of the Nation
§ 110. A nation ought to labor after its own happiness.
LET us continue to lay open the principal objects of a good government. What we have said in the five preceding chapters relates to the care of providing for the necessities of the people, and procuring plenty in the state: this is a point of necessity; but it is not sufficient for the happiness of a nation. Experience shows that a people may be unhappy in the midst of all earthly enjoyments, and in the possession of the greatest riches. Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where center all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. § 5). It is then the duty of those who form this public will, or of those who represent it — the rulers of the nation — to labor for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power.
(K. Notes: Vattel write, "Experience shows that a people may be unhappy in the midst of all earthly enjoyments, and in the possession of the greatest riches. Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government." But he writes as though it is the government's duty to make certain that the people are happy.
The Declaration states that it is a right to pursue happiness, but hints at no guarantee as to the realization of that happiness.
Herein resides the difference. Government cannot make any person happy. If it were the government's duty to make people happy, that government would soon fail before getting much into the task.
Regarding the pursuit of happiness a government can in deed make certain that most, if not all unjust hindrances are addressed and minimized.)
§ 111. Instruction.
To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it. The sovereign cannot, then, take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they choose to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind; on the other hand they are more fully sensible than their neighbors, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority: — incapable of being slaves, they are faithful subjects.
(K. Notes: Vattel has redeemed himself with; "To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it."
It is no longer the duty of government to make people happy, but to instruct society about how to find that which they feel most happy.)
§ 112. Education of youth.
The first impressions made on the mind are of the utmost importance for the remainder of life. In the tender years of infancy and youth, the human mind and heart easily receive the seeds of good or evil. Hence the education of youth is one of the most important affairs that deserve the attention of the government. It ought not to be entirely left to fathers. The most certain way of forming good citizens is to found good establishments for public education, to provide them with able masters — direct them with prudence — and pursue such mild and suitable measures, that the citizens will not neglect to take advantage of them. How admirable was the education of the Romans, in the flourishing ages of their republic, and how admirably was it calculated to form great men! The young men put themselves under the patronage of some illustrious person; they frequented his house, accompanied him wherever he went, and equally improved by his instructions and example: their very sports and amusements were exercises proper to form soldiers. The same practice prevailed at Sparta; and this was one of the wisest institutions of the incomparable Lycurgus. That legislator and philosopher entered into the most minute details respecting the education of youth, being persuaded that on that depended the prosperity and glory of his republic.
(K. Notes: It is amazing how many valuable lessons intended for liberty get used for tyranny. This sentence by Vattel is a prime example, "The first impressions made on the mind are of the utmost importance for the remainder of life."
In these united States of America, the tyranny of our government, with respect to what the Congress has coined as 'aour nation's pledge'; began forcing the youngest children in the schools to recite that pledge under threat of punishment. That pledge is a pledge to the Republic. The Constitution, Article 4, Section 4 makes it unquestionably clear about what that Republic is. "The republican form og government."
It has been, ever since The Declaration, that the government owes it allegiance to the governed people by way of their oath to The Constitution.
The people owe our allegiance to each other in the preservation of all of our rights equally.
The Declaration contains this warning about becoming comfortable with political injustices. "All experience hath shew that mankind are more disposed to suffer, while those evils are sufferable, than to right themselves by abolishing the form to which they have become accustomed." In the hands of tyrants, they only advance seemingly small encroachments against the people's rights; barely notices, but livable. Thus, opening the door for even greater encroachments that go just as un-noticed.)
§ 113 Arts and sciences.
Who can doubt that the sovereign — the whole nation — ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder, — literature and the polite arts enlighten the mind and soften the manners: and if study does not always inspire the love of virtue, it is because it sometimes, and even too often, unhappily meets with an incorrigibly vicious heart. The nation and its conductors ought then to protect men of learning and great artists, and to call forth talents by honors and rewards. Let the friends of barbarism declaim against the sciences and polite arts; — let us, without deigning to answer their vain reasonings, content ourselves with appealing to experience. Let us compare England, France, Holland, and several towns of Switzerland and Germany, to the many regions that lie buried in ignorance, and see where we can find the greater number of honest men and good citizens. It would be a gross error to oppose against us the example of Sparta, and that of ancient Rome. They, it is true, neglected curious speculations, and those branches of knowledge and art that were purely subservient to pleasure and amusement; but the solid and practical sciences — morality, jurisprudence, politics, and war — were cultivated by them, especially by the Romans, with a degree of attention superior to what we bestow upon them.
(K. Notes: This, "encourage the arts and sciences" is done from Article 1, Section 8, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The useful arts; this would exclude the 'art of robbery' and such socially destructive 'arts'.)
In the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them. The immortal Peter I. thought that without their assistance he could not entirely civilize Russia, and render it flourishing. In England, learning and abilities lead to honor and riches. Newton was honored, protected, and rewarded while living, and after his death, his tomb was placed among those of kings. France also, in this respect, deserves particular praise; to the munificence of her kings she is indebted for several establishments that are no less useful than glorious. The Royal Academy of Sciences diffuses on every side the light of knowledge and the desire of instruction. Louis XV. furnished the means of sending to search, under the equator and the polar circle, for the proof of an important truth; and we at present know what was before only believed on the strength of Newton's calculations. Happy will that kingdom be, if the too general taste of the age does not make the people neglect solid knowledge, to give themselves up to that which is merely amusing, and if those who fear the light do not succeed in extinguishing the blaze of science!
(K. Notes: This is yet another tool that distinguishes tyrants from leaders; "Happy will that kingdom be, if the too general taste of the age does not make the people neglect solid knowledge, to give themselves up to that which is merely amusing, and if those who fear the light do not succeed in extinguishing the blaze of science!"
These united States of America have given ourselves up to that which is merely amusing (sporting events and the amusements of theater). We have nearly extinguished the blaze of science and replaced it with the soon passing fame of the gladiator in the sporting arena.
The Romans or Greeks kept their subjects dulled with bread and circuses. Keeping them fed and entertained.)
§ 114 Freedom of philosophical discussion.
I speak of the freedom of philosophical discussion, which is the soul of the republic of letters. What can genius produce, when trammeled by fear? Can the greatest man that ever lived contribute much towards enlightening the minds of his fellow-citizens, if he finds himself constantly exposed to the cavils of captious and ignorant bigots — if he is obliged to be continually on his guard, to avoid being accused by innuendo-mongers of indirectly attacking the received opinions? I know that liberty has its proper bounds — that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion. ...
(K. Notes: Vattel writes, "I know that liberty has its proper bounds — that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion."
1647 Definition for:
Scandall, An offense which causeth on to take offense.
Scandalize, To offend by giving ill example.
When Vattel seems to indicate that government ought "not to allow publications of scandalous production" who might he propose be the judge against such productions? The Government?
If the productions are in deed scandalous and harmful to society, trials may be openly and publicly conducted so that the actual harmed entities might recover damages that resulted from the publication, broadcast, or speaking.
But to allow the government or the religion to be the sole determining factor of what qualifies as scandal is to destroy freedom.)
... But yet, great care should be taken not to extinguish a light that may afford the state the most valuable advantages. Few men know how to keep a just medium; and the office of literary censor ought to be intrusted to none but those who are at once both prudent and enlightened. ...
(K. Notes: The trouble with "the office of literary censor ought to be intrusted to none but those who are at once both prudent and enlightened" is that all too frequently such individuals find greater reward by bending to the will of those tyrants who may hold political or religious power.)
....Why should they search in a book for what the author does not appear to have intended to put into it? And when a writer's thoughts and discourses are wholly employed on philosophy, ought a malicious adversary to be listened to, who would set him at variance with religion? So far from disturbing a philosopher on account of his opinions, the magistrate ought to chastise those who publicly charge him with impiety, when in his writings he shows respect to the religion of the state. The Romans seem to have been formed to give examples to the universe. That wise people carefully supported the worship and religious ceremonies established by law, and left the field open to the speculations of philosophers. Cicero — a senator, a consul, an augur — ridicules superstition, attacks it, and demolishes it in his philosophical writings; and, in so doing, he thought he was only promoting his own happiness and that of his fellow citizens: but he observes that "to destroy superstition is not destroying religion; for," says he, "it becomes a wise man to respect the institutions and religious ceremonies of his ancestors: and it is sufficient to contemplate the beauty of the world, and the admirable order of the celestial bodies, in order to be convinced of the existence of an eternal and all-perfect being, who is entitled to the veneration of the human race." And in his Dialogues on the Nature of the Gods, he introduces Cotta the academic, who was high-priest, attacking with great freedom the opinions of the stoics, and declaring that he should always be ready to defend the established religion, from which he saw the republic had derived great advantages; that neither the learned nor the ignorant should make him abandon it: he then says to his adversary," These are my thoughts, both as pontiff and as Cotta. But do you, as a philosopher, bring me over to your opinion by the strength of your arguments: for a philosopher ought to prove to me the truth of the religion he would have me embrace, whereas I ought in this respect to believe our forefathers, even without proof."
(K. Notes: Vattel quotes Cotta as having written, "whereas I ought in this respect to believe our forefathers, even without proof."
The youth who blindly follow prior generation, without proof, are doomed to continue the previous generation's mistakes.)
Let us add experience to these examples and authorities. Never did a philosopher occasion disturbances in the state, or in religion, by his opinions: they would make no noise among the people, nor ever offend the weak, if malice or intemperate zeal did not take pains to discover a pretended venom lurking in them. It is by him who endeavors to place the opinions of a great man in opposition to the doctrines and worship established by law, that the state is disturbed, and religion brought into danger.
§ 115 Love of virtue, and abhorrence of vice, to be excited.
To instruct the nation is not sufficient: — in order to conduct it to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice. Those who are deeply versed in the study of morality are convinced that virtue is the true and only path that leads to happiness; so that its maxims are but the art of living happily; and he must be very ignorant of politics, who does not perceive how much more capable a virtuous nation will be, than any other, of forming a state that shall be at once, happy, tranquil, flourishing, solid, respected by its neighbors, and formidable to its enemies. The interest of the prince must then concur with his duty and the dictates of his conscience, in engaging him to watch attentively over an affair of such importance. Let him employ all his authority in order to encourage virtue, and suppress vice: let the public establishments be all directed to this end: let his own conduct, his example, and the distribution of favors, posts, and dignities, all have the same tendency. Let him extend his attention even to the private life of the citizens, and banish from the state whatever is only calculated to corrupt the manners of the people. It belongs to politics to teach him in detail the different means of attaining this desirable end — to show him those he should prefer, and those he ought to avoid on account of the dangers that might attend the execution, and the abuses that might be made of them. We shall here only observe, in general, that vice may be suppressed by chastisements, but that mild and gentle methods alone can elevate men to the dignity of virtue; it may be inspired, but it cannot be commanded.
(K. Notes: Equal but opposite rights. Frequently, in these united States of America, people refer to their right of free speech; then continue to ramp up the volume while they continue. Loud enough to heard blocks away, while their immediate audience may be just a couple of people, if that; they violate an equal right of other people to the peace and quiet of their surroundings.
Though some see these two rights as being in conflict, they ar not. They are merely opposites.
Little responsibility not only for the volume, but also for the content is accepted by people who 'speak' louder than necessary, given the surroundings and even less responsibility for what they say.
Every individual does in fact possess the 'right' to speak as loudly as they desire, and even to speak all sort of untruth about a situation or person. BUT with those rights come the responsibility pay for any damages that happen because of the speech. Damages to property or person. Damage to enterprise by loss of revenue because of false statements.
If we hold individuals responsible for what they say and how they say it; far fewer instances of individuals rant blindly of matter they know too little about.)
§ 116. The nation may hence discover the intention of her rulers.
It is an incontestable truth, that the virtues of the citizens constitute the most happy dispositions that can be desired by a just and wise government. Here then is an infallible criterion, by which the nation may judge of the intentions of those who govern it. If they endeavor to render the great and the common people virtuous, their views are pure and upright; and you may rest assured that they solely aim at the great end of government — the happiness and glory of the nation. But if they corrupt the morals of the people, spread a taste for luxury, effeminacy, a rage for licentious pleasures — if they stimulate the higher orders to a ruinous pomp and extravagance — beware, citizens! beware of those corruptors! they only aim at purchasing slaves in order to exercise over them an arbitrary sway.
(K. Notes: Hence, the bread and circuses. Keep the people fed enough to work, and entertained by whatever means keeps them otherwise occupied, so as to not notice the evils of their government and religious officers.)
If a prince has the smallest share of moderation, he will never have recourse to these odious methods. Satisfied with his superior station and the power given him by the laws, he proposes to reign with glory and safety; he loves his people, and desires to render them happy. But his ministers are in general impatient of resistance, and cannot brook the slightest opposition: if he surrenders to them his authority, they are more haughty and intractable than their master: they feel not for his people the same love that he feels: "let the nation be corrupted (say they) provided it do but obey." They dread the courage and firmness inspired by virtue, and know that the distributor of favors rules as he pleases over men whose hearts are accessible to avarice. Thus a wretch who exercises the most infamous of all professions, perverts the inclinations of a young victim of her odious traffic; she prompts her to luxury and epicurism; she inspires her with voluptuousness and vanity, in order the more certainly to betray her to a rich seducer. This base and unworthy creature is sometimes chastised by the magistrate; but the minister, who is infinitely more guilty, wallows in wealth, and is invested with honor and authority. Posterity, however, will do him justice, and detest the corruptor of a respectable nation.
(K. Notes: but that posterity is usually many generations removed from the first corrupter, and the generations between, merely sweep the corruption under the rug, in hope it will soon be forgotten and disappear.)
§ 117. The nation, or public person, bound to perfect her understanding and will.
If governors endeavored to fulfill the obligations which the law of nature lays upon them with respect to themselves, and in their character of conductors of the state, they would be incapable of ever giving into the odious abuse just mentioned. Hitherto we have considered the obligation a nation is under to acquire knowledge and virtue, or to perfect its understanding and will; — that obligation, I say, we have considered in relation to the individuals that compose a nation; it also belongs in a proper and singular manner to the conductors of the state. A nation, while she acts in common, or in a body, is a moral person (Prelim. § 2) that has an understanding and will of her own, and is not less obliged than any individual to obey the laws of nature (Book I. § 5), and to improve her faculties (Book I. § 21). That moral person resides in those who are invested with the public authority, and represent the entire nation. Whether this be the common council of the nation, an aristocratic body, or a monarch, this conductor and representative of the nation, this sovereign of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign.
(K. Notes: Regarding, "That moral person resides in those who are invested with the public authority, and represent the entire nation... this sovereign of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign."
(K. Notes: Regarding, "That moral person resides in those who are invested with the public authority, and represent the entire nation... this sovereign of whatever kind, is therefore indispensably obliged to procure all the knowledge and information necessary to govern well, and to acquire the practice and habit of all the virtues suitable to a sovereign."
It is the body of the people in this nation that are supposed to set the tone of morality for the government officers; for we are the human resources department for hiring and firing those same officials via general elections and recall elections.)
And as this obligation is imposed with a view to the public welfare, he ought to direct all his knowledge, and all his virtues, to the safety of the state, the end of civil society.
§ 118. and to direct the knowledge and virtues of the citizens to the welfare of the society.
He ought even to direct, as much as possible, all the abilities, the knowledge, and the virtues of the citizens to this great end; so that they may not only be useful to the individuals who possess them, but also to the state. This is one of the great secrets in the art of reigning. The state will be powerful and happy, if the good qualities of the subject, passing beyond the narrow sphere of private virtues, become civic virtues. This happy disposition raised the Roman republic to the highest pitch of power and glory.
§ 119. Love for their country.
The grand secret of giving to the virtues of individuals a turn so advantageous to the state, is to inspire the citizens with an ardent love for their country. It will then naturally follow, that each will endeavor to serve the state, and to apply all his powers and abilities to the advantage and glory of the nation. This love of their country is natural to all men. The good and wise Author of nature has taken care to bind them, by a kind of instinct, to the places where they received their first breath, and they love their own nation, as a thing with which they are intimately connected. But it often happens that some causes unhappily weaken or destroy this natural impression. The injustice or the severity of the government too easily effaces it from the hearts of the subjects; can self-love attach an individual to the affairs of a country where every thing is done with a view to a single person? — far from it: — we see, on the contrary, that free nations are passionately interested in the glory and the happiness of their country. Let us call to mind the citizens of Rome in the happy days of the republic, and consider, in modern times, the English and the Swiss.
§ 120. in individuals.
The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country. This sensation ought also to flow from the engagements he has entered into with society. He has promised to procure its safety and advantage as far as in his power: and how can he serve it with zeal, fidelity, or courage, if he has not a real love for it?
§ 121. in the nation or state itself, and in the sovereign.
The nation in a body ought doubtless to love itself, and desire its own happiness as a nation. The sensation is too natural to admit of any failure in this obligation: but this duty relates more particularly to the conductor, the sovereign, who represents the nation, and acts in its name. He ought to love it as what is most dear to him, to prefer it to every thing, for it is the only lawful object of his care, and of his actions, in every thing he does by virtue of the public authority. The monster who does not love his people is no better than an odious usurper, and deserves, no doubt, to be hurled from the throne. There is no kingdom where the statue of Codrus ought not to be placed before the palace of the sovereign. That magnanimous king of Athens sacrificed his life for his people. That great prince and Louis XII, are illustrious models of the tender love a sovereign owes to his subjects.
§ 122. Definition of the term, “country,”.
The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the State of which one is a member: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations.
In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to choose another country, — that is, to become a member of another society; so. when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts.
§ 123. How shameful and criminal to injure our country.
If every man is obliged to entertain a sincere love for his country, and to promote its welfare as far as in his power, it is a shameful and detestable crime to injure that very country. He who becomes guilty of it, violates his most sacred engagements, and sinks into base ingratitude: he dishonors himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens, and treats as enemies those who had a right to expect his assistance and services. We see traitors to their country only among those men who are solely sensible to base interest, who only seek their own immediate advantage, and whose hearts are incapable of every sentiment of affection for others. They are, therefore, justly detested by mankind in general, as the most infamous of all villains.
§ 124. The glory of good citizens.—Examples.
On the contrary, those generous citizens are loaded with honor and praise, who, not content with barely avoiding a failure in duty to their country, make noble efforts in her favor, and are capable of making her the greatest sacrifices. The names of Brutus, Curtius, and the two Decii, will live as long as that of Rome. The Swiss will never forget Arnold de Winkelried, that hero, whose exploit would have deserved to be transmitted to posterity by the pen of a Livy. He truly devoted his life for his country's sake: but he devoted it as a general, as an undaunted warrior, not as a superstitious visionary. That nobleman, who was of the country of Underwald, seeing, at the battle of Sempach, that his countrymen could not break through the Austrians, because the latter, armed cap-a-pie, had dismounted and forming a close battalion, presented a front covered with steel, and bristling with pikes and lances, — formed the generous design of sacrificing himself for his country. "My friends," said he to the Swiss, who began to be dispirited, " I will this day give my life to procure you the victory: I only recommend to you my family: follow me, and act in consequence of what you see me do." At these words he ranged them in that form which the Romans called cuneus, and placing himself in the point of the triangle, marched to the center of the enemy, when, embracing between his arms as many of the enemy's pikes as he could compass, he threw himself to the ground, thus opening for his followers a passage to penetrate into the midst of this thick battalion. The Austrians, once broken, were conquered, as the weight of their armor then became fatal to them, and the Swiss obtained a complete victory.
CHAPTER 12: Of Piety and Religion
§ 125. Of piety.
PIETY and religion have an essential influence on the happiness of a nation, and, from their importance, deserve a particular chapter. Nothing is so proper as piety to strengthen virtue, and give it its due extent. By the word Piety, I mean a disposition of soul that leads us to direct all our actions towards the Deity, and to endeavor to please him in every thing we do. To the practice of this virtue all mankind are indispensably obliged: it is the purest source of their felicity; and those who unite in civil society are under still greater obligations to practice it. A nation ought then to be pious. The superiors intrusted with the public affairs should constantly endeavor to deserve the approbation of their divine Master; and whatever they do in the name of the state, ought to be regulated by this grand view. The care of forming pious dispositions in all the people should be constantly one of the principal objects of their vigilance, and from this the state will derive very great advantages. A serious attention to merit, in all our actions, the approbation of an infinitely wise Being, cannot fail of producing excellent citizens. Enlightened piety in the people is the firmest support of a lawful authority; and, in the sovereign's heart, it is the pledge of the people's safety, and excites their confidence. Ye lords of the earth, who acknowledge no superior here below, what security can we have for the purity of your intentions, if we do not conceive you to be deeply impressed with respect for the common Father and Lord of men, and animated with a desire to please him?
(K. Notes: Regarding Vattel's statement, "By the word Piety, I mean a disposition of soul that leads us to direct all our actions towards the Deity, and to endeavor to please him in every thing we do."
The problem that Vattel should have seen, but clearly misses is that whatever the political leaders of a people declare as that 'divine'; it generally is that government-religious leader who gets the final say regarding what it is that makes that 'god', that deity 'happy'. Thus the entire soul of a society may change from peaceable to war-like to totally immoral activity.
It is not the government officers who set the tone for the nation, and it is not the gods. It is the people as a society who are the true leaders of a nation. This is proved by the people they set into office or allow to remain in offices; who generally reflect the nature of the people.)
§ 126. It ought to be attended with knowledge.
We have already insinuated that piety ought to be attended with knowledge. In vain would we propose to please God, if we know not the means of doing it. But what a deluge of evils arises, when men, heated by so powerful a motive, are prompted to take methods that are equally false and pernicious! A blind piety only produces superstitious bigots, fanatics, and persecutors, a thousand times more dangerous and destructive to society than libertines are. There have appeared barbarous tyrants who have talked of nothing but the glory of God, while they crushed the people, and trampled under foot the most sacred laws of nature. It was from a refinement of piety, that the anabaptists of the sixteenth century refused all obedience to the powers of the earth. James Clement and Ravaillac, those execrable parricides, thought themselves animated by the most sublime devotion.
(K. Notes: If, "piety ought to be attended with knowledge", as Vattel nearly redeems himself, that knowledge would show that the gods do not actually exist, except within the minds of the people who worship the god they created for themselves.
This is proved time and again with each religious leader of differing gods, as well as differing denominations of the supposed same god.)
§ 127. Religion, internal and external.
Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honor of the Supreme Being. So far as it is seated in the heart, if is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state.
§ 128. Rights of individuals:—liberty of conscience.
Every man is obliged to endeavor to obtain just ideas of God, to know his laws, his views with respect to his creatures, and the end for which they were created. Man doubtless owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honor God in all his actions, and show, by the most suitable means, the sentiments that fill his mind. This short explanation is sufficient to prove that man is essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded; and what kind of worship must that be which is produced by force? Worship consists in certain actions performed with an immediate view to the honor of God; there can be no worship proper for any man, which he does not believe suitable to that end. The obligation of sincerely endeavoring to know God, of serving him, and adoring him from the bottom of the heart, being imposed on man by his very nature, — it is impossible that, by his engagements with society, he should have exonerated himself from that duty. or deprived himself of the liberty which is absolutely necessary for the performance of it. It must then be concluded, that liberty of conscience is a natural and inviolable right. It is a disgrace to human nature, that a truth of this kind should stand in need of proof.
(K. Notes: "Man doubtless owes the most pure love, the most profound respect to his Creator; and to keep alive these dispositions, and act in consequence of them, he should honor God in all his actions, and show, by the most suitable means, the sentiments that fill his mind..... It must then be concluded, that liberty of conscience is a natural and inviolable right. It is a disgrace to human nature, that a truth of this kind should stand in need of proof."
Vattel shows signs of having not challenged the religious teachings from his elders. Had he done so, he would realize that as societies change and evolve, so too do their gods to match and condone the actions of society.)
§ 129. Public establishment of religion:—rights and duties of the nation.
But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society. The establishment of religion by law, and its public exercise, are matters of state, and are necessarily under the jurisdiction of the political authority. If all men are bound to serve God, the entire nation, in her national capacity is doubtless obliged to serve and honor him (Prelim. § 5), And as this important duty is to be discharged by the nation in whatever manner she judges best, — to the nation it belongs to determine what religion she will follow, and what public worship she thinks proper to establish.
§ 130. when there is as yet no established religion.
If there be as yet no religion established by public authority, the nation ought to use the utmost care, in order to know and establish the best. That which shall have the approbation of the majority shall be received, and publicly established by law; by which means it will become the religion of the state. But if a considerable part of the nation is obstinately bent upon following another, it is asked — What does the law of nations require in such a case? Let us first remember that liberty of conscience is a natural right, and that there must be no constraint in this respect. There remain then but two methods to take, — either to permit this party of the citizens to exercise the religion they choose to profess, or to separate them from the society, leaving them their property, and their share of the country that belonged to the nation in common, — and thus to form two new states instead of one. ....
(K. Notes: Regarding: "If there be as yet no religion established by public authority, the nation ought to use the utmost care, in order to know and establish the best."
Religions are, at best, a crutch for societies that lack responsibility for their own actions, either as individuals or as a community en-total.
The 'best' religion — is no religion at all; but simply sound social laws.)
.....The latter method appears by no means proper: it would weaken the nation, and thus would be inconsistent with that regard which she owes to her own preservation. It is therefore of more advantage to adopt the former method, and thus to establish two religions in the state. But if these religions are too incompatible; if there be reason to fear that they will produce divisions among the citizens and disorder in public affairs, there is a third method, a wise medium between the two former, of which the Swiss have furnished examples. The cantons of Glaris and Appenzel were, in the sixteenth century, each divided into two parts: the one preserved the Romish religion, and the other embraced the Reformation; each part has a distinct government of its own for domestic affairs; but on foreign affairs they unite, and form but one and the same republic, one and the same canton.
(K. Notes: Vattel seems misguided in that if a society be divided, in this specific aspect of religion, that it would weaken the society by allowing the division into two separate societies. This is the mistake that the united States of America made in the 1860's. It caused a needlessly bloody war to try to keep the states in the same body, than allow those who felt unprotected to separate into their own society.
The Declaration solves this issue in two separate locations. The first is in the introductory lines, which state: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
Then, towards the end of the second to last paragraph, it states, "We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends."
With both of those bits of advice, it is nearly always better to allow to opposing parties of the same body to go their separate ways, taking with them those possessions distinctly their contributions to the previous union. Then, when separates peaceably, communications and commerce may continue as well as other friendly interactions. Thus saving both.
However, with bloody wars, the idea that first created the union may be totally lost and the forces re-union of the two parties will only keep the anger alive within, only to destroy both of them all the worse.)
Finally, if the number of citizens who would profess a different religion from that established by the nation be inconsiderable; and if, for good and just reasons, it be thought improper to allow the exercise of several religions in the state — those citizens have a right to sell their lands, to retire with their families, and take all their property with them. For their engagements to society, and their submission to the public authority, can never oblige them to violate their consciences. If the society will not allow me to do that to which I think myself bound by an indispensable obligation, it is obliged to allow me permission to depart.
§ 131. when there is an established religion.
When the choice of a religion is already made, and there is one established by law, the nation ought to protect and support that religion, and preserve it as an establishment of the greatest importance, without, however, blindly rejecting the changes that may be proposed to render it more pure and useful: for we ought, in all things, to aim at perfection (§ 21). But as all innovations, in this case, are full or danger, and can seldom be produced without disturbances, they ought not to be attempted upon slight grounds, without necessity, or very important reasons. It solely belongs to the society, the state, the entire nation, to determine the necessity or propriety of those changes; and no private individual has a right to tempt them by his own authority, nor consequently to preach to the people a new doctrine. Let him offer his sentiments to the conductors of the nation, and submit to the orders he receives from them.
(K. Notes: The Declaration addresses this thought, "for we ought, in all things, to aim at perfection (§ 21). But as all innovations, in this case, are full or danger, and can seldom be produced without disturbances, they ought not to be attempted upon slight grounds, without necessity, or very important reasons" in its second paragraph, when it uses the following words, "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
Though mentioned for government, the same would apply to religion as well.)
(K. Notes: Regarding Vattel and, "no private individual has a right to tempt them by his own authority, nor consequently to preach to the people a new doctrine." Had the man name Jesus, some 2,000 years past held to this doctrine, we may never have heard about Christianity and much of the destruction that happened under its name.
But if a new religion spreads, and becomes fixed in the minds of the people, as it commonly happens, independently of the public authority, and without any deliberation in common, it will be then necessary to adopt the mode of reasoning we followed in the preceding section on the case of choosing a religion; to pay attention to the number of those who follow the new opinions — to remember that no earthly power has authority over the consciences of men, — and to unite the maxims of sound policy with those of justice and equity.
§ 132. Duties and rights of the sovereign with respect to religion.
We have thus given a brief compendium of the duties and rights of a nation with regard to religion. Let us now come to those of the sovereign. These cannot be exactly the same as those of the nation which the sovereign represents. The nature of the subject opposes it; for in religion nobody can give up his liberty. To give a clear and distinct view of those rights and duties of the prince, and to establish them on a solid basis, it is necessary here to refer to the distinction we have made in the two preceding sections: if there is question of establishing a religion in a state that has not yet received one, the sovereign may doubtless favor that which to him appears the true or the best religion, — may have it announced to the people, and, by mild and suitable means, endeavor to establish it; — he is even bound to do this, because he is obliged to attend to every thing that concerns the happiness of the nation. But in this he has no right to use authority and constraint. Since there was no religion established in the society when he received his authority, the people gave him no power in this respect; the support of the laws relating to religion is no part of his office, and does not belong to the authority with which they intrusted him. Numa was the founder of the religion of the ancient Romans: but he persuaded the people to receive it. If he had been able to command in that instance, he would not have had recourse to the revelations of the nymph Egeria. Though the sovereign cannot exert any authority in order to establish a religion where there is none, he is authorized, and ever obliged, to employ all his power to hinder the introduction of one which he judges pernicious to morality and dangerous to the state. For he ought to preserve his people from every thing that may be injurious to them; and so far is a new doctrine from being an exception to this rule, that it is one of its most important objects. We shall see, in the following sections, what are the duties and rights of the prince in regard to the religion publicly established.
(K. Notes: "For he [government officer] ought to preserve his people from every thing that may be injurious to them;" This is mistaken thought that it is the government officer that gets to declare what is in the best interest of the people. For, the government officer derives their power from THE PEOPLE, it is the people who will dictate to the officer what is in their own best interest.)
§ 133. where there is an established religion.
The prince, or the conductor, to whom the nation has intrusted the care of the government and the exercise of the sovereign power, is obliged to watch over the preservation of the received religion, the worship established by law, and has a right to restrain those who attempt to destroy or disturb it. But to acquit himself of this duty in a manner equally just and wise, he ought never to lose sight of the character in which he is called to act, and the reason of his being invested with it. Religion is of extreme importance to the peace and welfare of society; and the prince is obliged to have an eye to every thing in which the state is interested. This is all that calls him to interfere in religion, or to protect and defend it. It is therefore upon this footing only that he can interfere: consequently, he ought to exert his authority against those alone whose conduct in religious matters is prejudicial or dangerous to the state; but he must not extend it to pretended crimes against God, the punishment of which exclusively belongs to the Sovereign Judge, the searcher of hearts. Let us remember that religion is no farther an affair of state, than as it is exterior and publicly established: that of the heart can only depend on the conscience. The prince has no right to punish any persons but those that disturb society; and it would be very unjust in him to inflict pains and penalties on any person whatsoever for his private opinions when that person neither takes pains to divulge them, nor to obtain followers. It is a principle of fanaticism, a source of evils and of the most notorious injustice, to imagine that frail mortals ought to take up the cause of God, maintain his glory by acts of violence, and avenge him on his enemies. Let us only give to sovereigns, said a great statesman and an excellent citizen — let us give them, for the common advantage, the power of punishing whatever is injurious to charity in society. It appertains not to human justice to become the avenger of what concerns the cause of God. Cicero, who was as able and as great in state affairs as in philosophy and eloquence, thought like the Duke of Sully. In the laws he proposes relating to religion, he says, on the subject of piety and interior religion, "if any one transgresses, God will revenge it:" but he declares the crime capital that should be committed against the religious ceremonies established for public affairs, and in which the whole state is concerned. The wise Romans were very far from persecuting a man for his creed; they only required that people should not disturb the public order.
§ 134. Objects of his care, and the means he ought to employ.
The creeds or opinions of individuals, their sentiments with respect to the Deity, — in a word, interior religion — should, like piety, be the object of the prince's attention: he should neglect no means of enabling his subjects to discover the truth, and of inspiring them with good sentiments; but he should employ for this purpose only mild and paternal methods. Here he cannot command (§ 128). It is in external religion and its public exercise that his authority may be employed. His task is to preserve it, and to prevent the disorders and troubles it may occasion. To preserve religion, he ought to maintain it in the purity of its institution, to take care that it be faithfully observed in all its public acts and ceremonies, and punish those who dare to attack it openly. But he can require nothing by force except silence, and ought never to oblige any person to bear a part in external ceremonies: — by constraint, he would only produce disturbances or hypocrisy.
(K. Notes: "His task is to preserve it [religion], and to prevent the disorders and troubles it may occasion. To preserve religion, he ought to maintain it in the purity of its institution, to take care that it be faithfully observed in all its public acts and ceremonies, and punish those who dare to attack it openly."
"Attack it openly"? Is that not what a philosopher does when he publicly discusses, publicly publishes, and openly debates against whatever the subject - including religion? If it is against, it must be seen as an 'attack', even if well-founded and politely presented.
To prohibit such discourse as unwanted attacks is to silence education and prohibit the perfection of a society.)
A diversity of opinions and worship has often produced disorders and fatal dissensions in a state: and for this reason, many will allow but one and the same religion. A prudent and equitable sovereign will, in particular conjunctures, see whether it be proper to tolerate or forbid the exercise of several different kinds of worship.
§ 135. Toleration.
But, in general, we may boldly affirm that the most certain and equitable means of preventing the disorders that may be occasioned by difference of religion, is a universal toleration of all religions which contain no tenets that are dangerous either to morality or to the state. Let interested priests declaim! they would not trample under foot the laws of humanity, and those of God himself, to make their doctrine triumph, if it were not the foundation on which are erected their opulence, luxury, and power. Do but crush the spirit of persecution, — punish severely whoever shall dare to disturb others on account of their creed, and you will see all sects living in peace in their common country, and ambitious of producing good citizens. Holland, and the states of the King of Prussia, furnish a proof of this: Calvinists, Lutherans, Catholics, Pietists, Socinians, Jews, all live there in peace, because they are equally protected by the sovereign; and none are punished, but the disturbers of the tranquillity of others.
§ 136. How the prince is to act when the nation is resolved to change her religion.
If in spite of the prince's care to preserve the established religion, the entire nation, or the greater part of it, should be disgusted with it, and desire to have it changed, the sovereign cannot do violence to his people, nor constrain them in an affair of this nature. The public religion was established for the safety and advantage of the nation: and, besides its proving inefficacious when it ceases to influence the heart, the sovereign has here no other authority than that which results from the trust reposed in him by the people, and they have only committed to him that of protecting whatever religion they think proper to profess.
§ 137. Difference of religion does not deprive a prince of his crown.
But at the same time it is very just that the prince should have the liberty of continuing in the profession of his own religion, without losing his crown. Provided that he protect the religion of the state, this is all that can be required of him. In general, a difference of religion can never make any prince forfeit his claims to the sovereignty, unless a fundamental law ordain it otherwise. The pagan Romans did not cease to obey Constantine when he embraced Christianity; nor did the Christians revolt from Julian after he had quitted it.
§ 138. Duties and rights of the sovereign reconciled with those of the subjects.
We have established liberty of conscience for individuals (§ 128). However, we have also shown that the sovereign has a right, and is even under an obligation, to protect and support the religion of the state, and not suffer any person to attempt to corrupt or destroy it, — that he may even, according to circumstances, permit only one kind of public worship throughout the whole country. Let us reconcile those different duties and rights, between which it maybe thought that there is some contradiction: — let us, if possible, omit no material argument on so important and delicate a subject.
If the sovereign will allow the public exercise of only one and the same religion, let him oblige nobody to do any thing contrary to his conscience; let no subject be forced to bear a part in a worship which he disapproves, or to profess a religion which he believes to be false; but let the subject on his part rest content with avoiding the guilt of a shameful hypocrisy; let him, according to the light of his own knowledge, serve God in private and in his own house — persuaded that Providence does not call upon him for public worship, since it has placed him in such circumstances that he cannot perform it without creating disturbances in the state. God would have us obey our sovereign, and avoid every thing that may be pernicious to society. These are immutable precepts of the law of nature: the precept that enjoins public worship is conditional, and dependent on the effects which that worship may produce. Interior worship is necessary in its own nature; and we ought to confine ourselves to it, in all cases in which it is most convenient. Public worship is appointed for the edification of men in glorifying God: but it counteracts that end, and ceases to be laudable, on those occasions when it only produces disturbances, and gives offence. If any one believes it absolutely necessary, let him quit the country where he is not allowed to perform it according to the dictates of his own conscience; let him go and join those who profess the same religion with himself.
§ 139. The sovereign ought to have the inspection of the affairs of religion, and authority over those who teach it.
The prodigious influence of religion on the peace and welfare of society incontrovertibly proves that the conductor of the state ought to have the inspection of what relates to it, and an authority over the ministers who teach it. The end of society and of civil government necessarily requires that he who exercises the supreme power should be invested with all the rights without which he could not exercise it in a manner the most advantageous to the state. These are the prerogatives of majesty (§ 45), of which no sovereign can divest himself, without the express consent of the nation. The inspection of the affairs of religion, and the authority over its ministers, constitute, therefore, one of the most important of those prerogatives, since, without this power, the sovereign would never be able to prevent the disturbances that religion might occasion in the state, nor to employ that powerful engine in promoting the welfare and safety of the society. It would be certainly very strange that a multitude of men who united themselves in society for their common advantage, that each might, in tranquillity, labor to supply his necessities, promote his own perfection and happiness, and live as becomes a rational being: it would be very strange, I say, that such a society should not have a right to follow their own judgment in an affair of the utmost importance; to determine what they think most suitable with regard to religion; and to take care that nothing dangerous or hurtful be mixed with it. Who shall dare to dispute that an independent nation, has, in this respect as in all others, a right to proceed according to the light of conscience? and when once she has made choice of a particular religion and worship, may she not confer on her conductor all the power she possesses of regulating and directing that religion and worship, and enforcing their observance?
Let us not be told that the management of sacred things belongs not to a profane hand. Such discourses, when brought to the bar of reason, are found to be only vain declamations. There is nothing on earth more august and sacred than a sovereign; and why should God, who calls him by his providence to watch over the safety and happiness of a whole nation, deprive him of the direction of the most powerful spring that actuates mankind? The law of nature secures to him this right, with all others that are essential to good government; and nothing is to be found in Scripture that changes this disposition. Among the Jews, neither the king nor any other person could make any innovation in the law of Moses; but the sovereign attended to its preservation, and could chock the high priest when he deviated from his duty. Where is it asserted in the New Testament, that a Christian prince has nothing to do with religious affairs? Submission and obedience to the superior powers are there clearly and expressly enjoined. It were in vain to object to us the example of the apostles, who preached the gospel in opposition to the will of sovereigns: — whoever would deviate from the ordinary rules, must have a divine mission, and establish his authority by miracles.
No person can dispute that the sovereign has a right to take care that nothing contrary to the welfare and safety of the state be introduced into religion; and, consequently, he must have a right to examine its doctrines, and to point out what is to be taught, and what is to be suppressed in silence.
§ 140. He is bound to prevent the abuse of the established religion.
The sovereign ought, likewise, to watch attentively, in order to prevent the established religion from being employed to sinister purposes, either by making use of its discipline to gratify hatred, avarice, or other passions, or presenting its doctrines in a light that may prove prejudicial to the state. Of wild reveries, seraphic devotions, and sublime speculations, what would be the consequences to society, if it entirely consisted of individuals whose intellects were weak, and whose hearts were easily governed? — the consequences would be a renunciation of the world, a general neglect of business and of honest labor. This society of pretended saints would become an easy and certain prey to the first ambitious neighbor; or if suffered to live in peace, it would not survive the first generation; both sexes, consecrating their chastity to God, would refuse to co-operate in the designs of their Creator, and to comply with the requisitions of nature and of the state. Unluckily for the missionaries, it evidently appears, even from Father Charlevoix' History of New France, that their labors were the principal cause of the ruin of the Hurons. That author expressly says, that a great number of those converts would think of nothing but the faith — that they forgot their activity and valor — that divisions arose between them and the rest of the nation, etc. That nation was, therefore, soon destroyed by the Iroquois, whom they had before been accustomed to conquer.
§ 141. His authority over the ministers of religion.
To the prince's inspection of the affairs and concerns of religion we have joined an authority over its ministers: without the latter power, the former would be nugatory and ineffectual; — they are both derived from the same principle. It is absurd, and contrary to the first foundations of society, that any citizens should claim an independence of the sovereign authority, in offices of such importance to the repose, the happiness, and safety of the state. This is establishing two independent powers in the same society — an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state; the functions of the subordinate powers vary according to their different objects: — ecclesiastics, magistrates, and commanders of the troops, are all officers of the republic, each in his own department; and all are equally accountable to the sovereign.
§ 142. Nature of that authority.
A prince cannot, indeed, justly oblige an ecclesiastic to preach a doctrine, or to perform a religious rite, which the latter does not think agreeable to the will of God. But if the minister cannot, in this respect, conform to the will of his sovereign, he ought to resign his station, and consider himself as a man who is not called to fill it — two things being necessary for the discharge of the duty annexed to it, viz. to teach and behave with sincerity, according to the dictates of his own conscience, and to conform to the prince's intentions and the laws of the state. Who can forbear being filled with indignation, at seeing a bishop audaciously resist the orders of the sovereign, and the decrees of the supreme tribunals, solemnly declaring that he thinks himself accountable to God alone for the power with which he is intrusted?
§ 143. Rule to be observed with respect to ecclesiastics.
On the other hand, if the clergy are rendered contemptible, it will be out of their power to produce the fruits for which their ministry was appointed. The rule that should be followed with respect to them may be comprised in a few words; — let them enjoy a large portion of esteem; but let them have no authority, and still less any claim to independence. In the first place, let the clergy, as well as every other order of men, be, in their functions, as in every thing else, subject to the public power, and accountable to the sovereign for their conduct. Secondly, let the prince take care to render the ministers of religion respectable in the eyes of the people, let him trust them with the degree of authority necessary to enable them to discharge their duty with success; let him, in case of need, support them with the power he possesses. Every man in office ought to be vested with an authority commensurate to his functions; otherwise he will be unable to discharge them in a proper manner. I see no reason why the clergy should be excepted from this general rule; only the prince should be more particularly watchful that they do not abuse their authority; the affair being altogether the most delicate, and the most fruitful in dangers. If he renders the character of churchmen respectable, he should take care that this respect be not carried to such a superstitious veneration as shall arm the hand of an ambitious priest with a powerful engine with which he may force weak minds into whatever direction he pleases. When once the clergy become a separate body, they become formidable. The Romans (we shall often have occasion to recur to them) — the wise Romans elected from among the senators their pontifex-maximus and the principal ministers of the altar; they knew no distinction between clergy and laity; nor had they a set of gownsmen to constitute a separate class sfrom the rest of the citizens.
§ 144. Recapitulation of the reasons which establish the sovereign’s rights in matters of religion, 64— Authorities and examples.
If the sovereign be deprived of this power in matters of religion, and this authority over the clergy, how shall he preserve the religion pure from the admixture of any thing contrary to the welfare of the state? How can he cause it to be constantly taught and practiced in the manner most conducive to the public welfare? and, especially, how can he prevent the disorders it may occasion, either by its doctrines or the manner in which its discipline is exerted? These cares and duties can only belong to the sovereign, and nothing can dispense with his discharging them.
Hence we see that the prerogatives of the crown, in ecclesiastical affairs, have been constantly and faithfully defended by the parliaments of France. The wise and learned magistrates, of whom those illustrious bodies are composed, are sensible of the maxims which sound reason dictates on this subject. They know how important it is not to suffer an affair of so delicate a nature, so extensive in its connections and influence, and so momentous in its consequences, to be placed beyond the reach of the public authority. — What! Shall ecclesiastics presume to propose to the people, as an article of faith, some obscure and useless dogma, which constitutes no essential part of the received religion? — shall they exclude from the church, and defame those who do not show a blind obedience? — shall they refuse them the sacraments, and even the rites of burial? — and shall not the prince have power to protect his subjects, and preserve the kingdom from a dangerous schism?
The kings of England have asserted the prerogatives of their crown: they have caused themselves to be acknowledged heads of the church: and this regulation is equally approved by reason and sound policy, and is also conformable to ancient custom. The first Christian emperors exercised all the functions of heads of the church; they made laws on subjects relating to it, — summoned councils, and presided in them, — appointed and deposed bishops, etc. In Switzerland there are wise republics, whose sovereign knowing the full extent of the supreme authority, have rendered the ministers of religion subject to it, without offering violence to their consciences. They have prepared a formulary of the doctrines that are to be preached, and published laws of ecclesiastical discipline, such as they would have it exercised in the countries under their jurisdiction, — in order that those who will not conform to these establishments may not devote themselves to the service of the church. They keep all the ministers of religion in a lawful dependence, and suffer no exertion of church discipline but under their own authority. It is not probable that religion will ever occasion disturbances in these republics.
§ 145. Pernicious consequences of the contrary opinion.
If Constantine and his successors had caused themselves to be formally acknowledged heads of the church, — and if Christian kings and princes had, in this instance, known how to maintain the rights of sovereignty, — would the world ever have witnessed those horrid disorders produced by the pride and ambition of some popes and ecclesiastics, emboldened by the weakness of princes, and supported by the superstition of the people, — rivers of blood shed in the quarrels of monks, about speculative questions that were often unintelligible and almost always as useless to the salvation of souls as in themselves indifferent to the welfare of society — citizens and even brothers armed against each other, — subjects excited to revolt, and kings hurled from their thrones? Tantum religio potuit suadere malorum! The history of the emperors Henry IV., Frederick I., Frederick II., and Louis of Bavaria, is well known. Was it not the independence of the ecclesiastics, — was it not that system in which the affairs of religion are submitted to a foreign power, — that plunged France into the horrors of the league, and had nearly deprived her of the best and greatest of her kings? Had it not been for that strange and dangerous system, would a foreigner, Pope Sextus V., have undertaken to violate the fundamental law of the kingdom, and declared the lawful heir incapable of wearing the crown? Would the world have seen, at other times and in other places, the succession to the crown rendered uncertain by a bare informality — the want of a dispensation, whose validity was disputed, and which a foreign prelate claimed the sole right of granting? Would that same foreigner have arrogated to himself the power of pronouncing on the legitimacy of the issue of a king? Would kings have been assassinated in consequence of a detestable doctrine? Would a part of France have been afraid to acknowledge the best of their kings, until he had received absolution from Rome? And, would many other princes have been unable to give a solid peace to their people, because no decision could be formed within their own dominions on articles or conditions in which religion was interested?
§ 146. Abuses particularised.—1. The power of the popes.
All we have advanced on this subject, so evidently flows from the notions of independence and sovereignty, that it will never be disputed by any honest man who endeavors to reason justly. If a state cannot finally determine every thing relating to religion, the nation is not free, and the prince is but half a sovereign. There is no medium in this case; either each state must, within its own territories, possess supreme power in this respect, as well as in all others, or we must adopt the system of Boniface VIII., and consider all Roman Catholic countries as forming only one state, of which the pope shall be the supreme head, and the kings subordinate administrators of temporal affairs, each in his province, — nearly as the sultans were formerly under the authority of the caliphs. We know that the above-mentioned pope had the presumption to write to Philip the Fair, king of France, Scire te volumus, quod in spiritualibus et temporalibus nobis subes —; "We would have thee know that thou art subject to us as well in temporals as in spirituals." And we may see in the canon law his famous bull Unam sanctam, in which he attributes to the church two swords, or a double power, spiritual and temporal, — condemns those who think otherwise, as men, who, after the example of the Manicheans, establish two principles, — and finally declares, that it is an article of faith, necessary to salvation, to believe that every human creature is subject to the Roman pontiff.
We shall consider the enormous power of the popes as the first abuse that sprung from this system, which divests sovereigns of their authority in matters of religion. This power in a foreign court directly militates against the independence of nations and the sovereignty of princes. It is capable of overturning a state; and wherever it is acknowledged, the sovereign finds it impossible to exercise his authority in such a manner as is most for the advantage of the nation. We have already, in the last section, given several remarkable instances of this; and history presents others without number. The senate of Sweden having condemned Trollius, archbishop of Upsal, for the crime of rebellion, to be degraded from his see, and to end his days in a monastery, pope Leo X. had the audacity to excommunicate the administrator Steno and the whole senate, and sentenced them to rebuild, at their own expense, a fortress belonging to the archbishop, which they had caused to be demolished, and pay a fine of a hundred thousand ducats to the deposed prelate. The barbarous Christiern, king of Denmark, took advantage of this decree, to lay waste the territories of Sweden, and to spill the blood of the most illustrious of her nobility. Paul V. thundered out an interdict against Venice, on account of some very wise laws made with respect to the government of the city, but which displeased that pontiff, who thus threw the republic into an embarrassment, from which all the wisdom and firmness of the senate found it difficult to extricate it. Pius V., in his bull, in Cænna Domini, of the year 1567, declares, that all princes who shall introduce into their dominions any new taxes, of what nature soever they be, or shall increase the ancient ones, without having first obtained the approbation of the holy see, are ipso facto excommunicated. Is not this a direct attack on the independence of nations, and a subversion of the authority of sovereigns?
In those unhappy times, those dark ages that preceded the revival of literature and the Reformation, the popes attempted to regulate the actions of princes, under the pretense of conscience — to judge the validity of their treaties — to break their alliances, and declare them null and void. But those attempts met with a vigorous resistance, even in a country which is generally thought to have then possessed valor alone, with a very small portion of knowledge. The pope's nuncio, in order to detach the Swiss from the interests of France, published a monitory against all those cantons that favored Charles VIII., declaring them excommunicated, if within the space of fifteen days they did not abandon the cause of that prince, and enter into the confederacy which was formed against him; but the Swiss opposed this act, by protesting against it as an iniquitous abuse, and caused their protest to be publicly posted up in all the places under their jurisdiction: thus showing their contempt for a proceeding that was equally absurd and derogatory to the rights of sovereigns. We shall mention several other similar attempts, when we come to treat of the faith of treaties.
§ 147. 2. Important employments conferred by a foreign power.
This power in the popes has given birth to another abuse, that deserves the utmost attention from a wise government. We see several countries in which ecclesiastical dignities, and all the higher benefices, are distributed by a foreign power — by the pope — who bestows them on his creatures, and very often on men who are not subjects of the state. This practice is at once a violation of the nation's rights, and of the principles of common policy. A nation ought not to suffer foreigners to dictate laws to her, to interfere in her concerns, or deprive her of her natural advantages; and yet, how does it happen that so many states still tamely suffer a foreigner to dispose of posts and employments of the highest importance to their peace and happiness? The princes who consented to the introduction of so enormous an abuse were equally wanting to themselves and their people. In our times, the court of Spain has been obliged to expend immense sums, in order to recover, without danger, the peaceable possession of a right which essentially belonged to the nation or its head.
§ 148. 3. Powerful subjects dependent on a foreign court.
Even in those states whose sovereigns have preserved so important a prerogative of the crown, the abuse in a great measure subsists. The sovereign nominates, indeed, to bishoprics and great benefices; but his authority is not sufficient to enable the persons nominated to enter on the exercise of their functions; they must also have bulls from Rome. By this and a thousand other links of attachment, the whole body of the clergy in those countries still depend on the court of Rome; from it they expect dignities; from it that purple, which, according to the proud pretensions of those who are invested with it, renders them equal to sovereigns. From the resentment of that court they have every thing to fear; and of course we see them almost invariably disposed to gratify it on every occasion. On the other hand, the court of Rome supports those clergy with all her might, assists them by her politics and credit, protects them against their enemies, and against those who would set bounds to their power — nay, often against the just indignation of their sovereign; and by this means attaches them to her still more strongly. Is it not doing an injury to the rights of society, and shocking the first elements of government, thus to suffer a great number of subjects, and even subjects in high posts, to be dependent on a foreign prince, and entirely devoted to him? Would a prudent sovereign receive men who preached such doctrines? There needed no more to cause all the missionaries to be driven from China.
§ 149. 4. Celibacy of the priests:—Convents.
It was for the purpose of more firmly securing the attachment of churchmen that the celibacy of the clergy was invented. A priest, a prelate, already bound to the see of Rome by his functions and his hopes, is further detached from his country, by the celibacy he is obliged to observe. He is not connected with civil society by a family: his grand interests are all centered in the church; and, provided he has the pope's favor, he has no further concern: in what country soever he was born, Rome is his refuge, the center of his adopted country. Everybody knows that the religious orders are a sort of papal militia, spread over the face of the earth, to support and advance the interests of their monarch. This is doubtless a strange abuse — a subversion of the first laws of society. But this is not all: if the prelates were married, they might enrich the state with a number of good citizens; rich benefices affording them the means of giving their legitimate children a suitable education. But what a multitude of men are there in convents, consecrated to idleness under the cloak of devotion! Equally useless to society in peace and war, they neither serve it by their labor in necessary professions, nor by their courage in arms: yet they enjoy immense revenues; and the people are obliged, by the sweat of their brow, to furnish support for these swarms of sluggards. What should we think of a husbandman who protected useless hornets, to devour the honey of his bees? It is not the fault of the fanatic preachers of overstrained sanctity, if all their devotees do not imitate the celibacy of the monks. How happened it that princes could suffer them publicly to extol, as the most sublime virtue, a practice equally repugnant to nature, and pernicious to society? Among the Romans, laws were made to diminish the number of those who lived in celibacy, and to favor marriage: but superstition soon attacked such just and wise regulations; and the Christian emperors, persuaded by churchmen, thought themselves obliged to abrogate them. Several of the fathers of the church has censured those laws against celibacy — doubtless, says a great man, with a laudable zeal for the things of another life; but with very little knowledge of the affairs of this. This great man lived in the church of Rome" — he did not dare to assert, in direct terms, that voluntary celibacy is to be condemned even with respect to conscience and the things of another life: — but it is certainly a conduct well becoming genuine piety, to conform ourselves to nature, to fulfill the views of the Creator, and to labor for the welfare of society. If a person is capable of rearing a family, let him marry, let him be attentive to give his children a good education: — in so doing, he will discharge his duty, and be undoubtedly in the road to salvation.
(K. Notes: regarding; " But what a multitude of men are there in convents, consecrated to idleness under the cloak of devotion! Equally useless to society in peace and war, they neither serve it by their labor in necessary professions, nor by their courage in arms: yet they enjoy immense revenues; and the people are obliged, by the sweat of their brow, to furnish support for these swarms of sluggards."
The united States of America solved this problem on paper but never put it to practice.
On paper, the solution is simple. Every person may freely exercise the religion of their choosing, so long as they do not violate the rights of others wile so doing. The business of religion is to be treated and taxed as any other enterprise; and at the same fixed, flat rate.
The practice, however, is quite the opposite. Religious business and such non-profits are exempted from taxation and can rake in tons of money and other resources without paying a single tax dollar on any of those gains. And the people who can most afford those gifts get to right them off as losses against otherwise taxable income; all of which puts an even heavier tax burden on those citizens who least can afford the tax.)
§ 150. 5. Enormous pretensions of the clergy:— Pre-eminence.
The enormous and dangerous pretensions of the clergy are also another consequence of this system, which places every thing relating to religion beyond the reach of the civil power. In the first place, the ecclesiastics, under pretense of the holiness of their functions, have raised themselves above all other citizens, even the principal magistrates: and, contrary to the express injunctions of their master, who said to his apostles, seek not the first places at feasts, they have almost everywhere arrogated to themselves the first rank. Their head, in the Roman church, obliges sovereigns to kiss his feet; emperors have held the bridle of his horse; and if bishops or even simple priests do not at present raise themselves above their prince, it is because the times will not permit it: they have not always been so modest; and one of their writers has had the assurance to assert, that a priest is as much above a king as a man is above a beast. How many authors, better known and more esteemed than the one just quoted, have taken a pleasure in praising and extolling that silly speech attributed to the emperor Theodosius the First — Ambrose has taught me the great difference there is between the empire and the priesthood!
We have already observed that ecclesiastics ought to be honored: but modesty, and even humility, should characterize them: and does it become them to forget it in their own conduct while they preach it to others? I would not mention a vain ceremonial, were it not attended with very material consequences, from the pride with which it inspires many priests, and the impressions it may make on the minds of the people. It is essentially necessary to good order, that subjects should behold none in society so respectable as their sovereign, and, next to him, those on whom he has devolved a part of his authority.
§ 151. 6. Independence, immunities.
Ecclesiastics have not stopped in so fair a path. Not contented with rendering themselves independent with respect to their functions, — by the aid of the court of Rome, they have even attempted to withdraw themselves entirely, and in every respect, from all subjection to the political authority. There have been times when an ecclesiastic could not be brought before a secular tribunal for any crime whatsoever. The canon law declares expressly, It is indecent for laymen to judge a churchman. The popes Paul III., Pius V., and Urban VIII., excommunicated all lay judges who should presume to undertake the trial of ecclesiastics. Even the bishops of France have not been afraid to say on several occasions, that they did not depend on any temporal prince, and, in 1656, the general assembly of the French clergy had the assurance to use the following expressions — "The decree of council having been read, was disapproved by the assembly, because it leaves the king judge over the bishops, and seems to subject their immunities to his judges." There are decrees of the popes that excommunicate whoever imprisons a bishop. According to the principles of the church of Rome, a prince has not the power of punishing an ecclesiastic with death, though a rebel or a malefactor; — he must first apply to the ecclesiastical power; and the latter will, if it thinks proper, deliver up the culprit to the secular arm, after having degraded him. History affords us a thousand examples of bishops who remained unpunished, or were but slightly chastised, for crimes for which nobles of the highest rank forfeited their lives. John de Braganza, king of Portugal, justly inflicted the penalty of death on those noblemen who had conspired his destruction: but he did not dare to put to death the archbishop of Braga, the author of that detestable plot.
For an entire body of men, numerous and powerful, to stand beyond the reach of the public authority, and be dependent on a foreign court, is an entire subversion of order in the republic, and a manifest diminution of the sovereignty. This is a mortal stab given to society, whose very essence it is, that every citizen should be subject to the public authority. Indeed the immunity which the clergy arrogate to themselves in this respect, is so inimical to the natural and necessary rights of a nation, that the king himself has not the power of granting it. But churchmen will tell us they derive this immunity from God himself; but till they have furnished some proof of their pretensions, let us adhere to this certain principle, that God desires the safety of states, and not that which will only be productive of disorder and destruction to them.
§ 152. 7. Immunity of church possessions.
The same immunity is claimed for the possessions of the church. The state might, no doubt, exempt those possessions from every species of lax at a time when they were scarcely sufficient for the support of the ecclesiastics; but, for that favor, these men ought to be indebted to the public authority alone, which has always a right to revoke it, whenever the welfare of the state makes it necessary. It being one of the fundamental and essential laws of every society, that, in case of necessity, the wealth of all the members ought to contribute proportionally to the common necessities — the prince himself cannot, of his own authority, grant a total exemption to a very numerous and rich body, without being guilty of extreme injustice to the rest of his subjects, on whom, in consequence of that exemption, the whole weight of the burden will fall.
The possessions of the church are so far from being entitled to an exemption on account of their being consecrated to God, that, on the contrary, it is for that very reason they ought to be taken the first for the use and safety of the state. For nothing is more agreeable to the common Father of mankind than to save a state from ruin. God himself having no need of anything, the consecration of wealth to him is but a dedication of it to such uses as shall be agreeable to him. Besides, a great part of the revenues of the church, by the confession of the clergy themselves, is destined for the poor. When the state is in necessity, it is doubtless the first and principal pauper, and the most worthy of assistance. We may extend this principle even to the most common cases, and safely assert that to supply a part of the current expenses of the state from the revenues of the church, and thus take so much from the weight of the people's burden, is really giving a part of those revenues to the poor, according to their original destination. But it is really contrary to religion and the intentions of the founders to waste in pomp, luxury, and epicurism, those revenues that ought to be consecrated to the relief of the poor.
§ 153. 8. Excommunication of men in office.
Not satisfied, however, with rendering themselves independent, the ecclesiastics undertook to bring mankind under their dominion; and indeed they had reason to despise the stupid mortals who suffered them to proceed in their plan. Excommunication was a formidable weapon among ignorant and superstitious men, who neither knew how to keep it within its proper bounds, nor to distinguish between the use and the abuse of it. Hence arose disorders which have prevailed in some protestant countries. Churchmen have presumed, by their own authority alone, to excommunicate men in high employments, magistrates whose functions were daily useful to society — and have boldly asserted that those officers of the state, being struck with the thunders of the church, could no longer discharge the duties of their posts. What a perversion of order and reason! What! shall not a nation be allowed to intrust its affairs, its happiness, its repose and safety, to the hands of those whom it deems the most skillful and the most worthy of that trust? Shall the power of a churchman, whenever he pleases, deprive the state of its wisest conductors, of its firmest supports, and rob the prince of his most faithful servants? So absurd a pretension has been condemned by princes, and even by prelates, respectable for their character and judgment. We read in the 171st letter of Ives de Chartres, to the Archbishop of Sens, that the royal capitularies (conformably to the thirteenth canon of the twelfth council of Toledo, held in the year 681) enjoined the priests to admit to their conversation all those whom the king's majesty had received into favor or entertained at his table, though they had been excommunicated by them, or by others, in order that the church might not appear to reject or condemn those whom the king was pleased to employ in his service.
§ 154. 9. and of sovereigns themselves.
The excommunications pronounced against the sovereigns themselves, and accompanied with the absolution of their subjects from their oaths of allegiance, put the finishing stroke to this enormous abuse; and it is almost incredible that nations should have suffered such odious procedures. We have slightly touched on this subject in §§ 145 and 346. The thirteenth century gives striking instances of it. Otho IV. for endeavoring to oblige several provinces of Italy to submit to the laws of the empire, was excommunicated and deprived of the empire by Innocent III. and his subjects absolved from their oath of allegiance. Finally, this unfortunate emperor, being abandoned by the princes, was obliged to resign the crown to Frederic II. John, king of England, endeavoring to maintain the rights of his kingdom in the election of an archbishop of Canterbury, found himself exposed to the audacious enterprises of the same pope. Innocent excommunicated the king — laid the whole kingdom under an interdict — had the presumption to declare John unworthy of the throne, and to absolve his subjects from their oath of fidelity; he stirred up the clergy against him — excited his subjects to rebel — solicited the king of France to take up arms to dethrone him — publishing, at the same time, a crusade against him, as he would have done against the Saracens. The king of England at first appeared determined to defend himself with vigor: but soon losing courage, he suffered himself to be brought to such an excess of infamy, as to resign his kingdoms into the hands of the pope's legate, to receive them back from him, and hold them as a fief of the church, on ondition of paying tribute.
The popes were not the only persons guilty of such enormities: there have also been councils who bore a part in them. That of Lyons, summoned by Innocent IV., in the year 1245, had the audacity to cite the emperor Frederic II. to appear before them in order to exculpate himself from the charges brought against him — threatening him with the thunders of the church if he failed to do it. That great prince did not give himself much trouble about so irregular a proceeding. He said — "that the pope aimed at rendering himself both a judge and a sovereign; but that, from all antiquity, the emperors themselves had called councils, where the popes and prelates rendered to them, as to their sovereigns, the respect and obedience that was their due." The emperor, however, thinking it necessary to yield a little to the superstition of the times, condescended to send ambassadors to the council, to defend his cause; but this did not prevent the pope from excommunicating him, and declaring him deprived of the crown. Frederic, like a man of a superior genius, laughed at the empty thunders of the Vatican, and proved himself able to preserve the crown in spite of the election of Henry, Landgrave of Thuringia, whom the ecclesiastical electors, and many bishops, had presumed to declare king of the Romans — but who obtained little more by that election, than the ridiculous title of king of the priests.
I should never have done, were I to accumulate examples; but those I have already quoted are but too many for the honor of humanity. It is an humiliating sight to behold the excess of folly to which superstition had reduced the nations of Europe in those unhappy times.
§ 155. 10. The clergy drawing every thing to themselves, and interrupting the course of justice.
By means of the same spiritual arms, the clergy drew everything to themselves, usurped the authority of the tribunals, and disturbed the course of justice. They claimed a right to take cognizance of all causes on account of sin, of which (says Innocent III.) every man of sense must know that the cognizance belongs to our ministry. In the year 1329, the prelates of France had the assurance to tell King Philip de Valois, that to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere. And accordingly, it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that as dioceses were not always confined to the extent of the political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it, and stipulated, in their treaties, that none of the confederates should be summoned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice that were observed in the country. We find in history, that the Swiss on many occasions repressed the encroachments of the bishops and their judges.
Over every affair of life they extended their authority, under pretense that conscience was concerned. They obliged new-married husbands to purchase permission to he with their wives the first three nights after marriage.
§ 156. 11. Money drawn to Rome.
This burlesque invention leads us to remark another abuse, manifestly contrary to the rules of a wise policy, and to the duty a nation owes to herself; I mean the immense sums which bulls, dispensations, etc., annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavoring to gain too much, suffered irreparable losses.
§ 157. 12. Laws and customs inimical to the welfare of states.
Finally, that independent authority intrusted to ecclesiastics, who were often incapable of understanding the true maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a visionary fanaticism, by empty speculations, and notions of a chimerical and overstrained purity, — that authority, I say, produced under the pretense of sanctity, laws and customs that were pernicious to the state. Some of these we have noticed; but a very remarkable instance is mentioned by Grotius. "In the ancient Greek church," says he, "was long observed a canon, by which those who had killed an enemy in any war whatsoever were excommunicated for three years:" a fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honor them! Pagan Rome became mistress of the world; she adorned her bravest warriors with crowns. The empire, having embraced Christianity, soon became a prey to barbarians; her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness.
CHAPTER 13: Of Justice And Polity
§ 158. A nation ought to make justice reign.
NEXT to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§ 15), that men have bound themselves by the engagements of society, and consented to divest themselves, in its favor, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainly. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavor to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened.
(K. Notes: "They ought to employ their utmost attention in causing it [justice] to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burdensome manner. "
The U. S. Constitution, Amendment 6, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." works to do just that; equally defend every one, make certain that the process is done without delay, and being done in the least burdensome manner.)
(K. Notes: Regarding, "Confusion, disorder, and despondency will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes; without this, the civil virtues will become extinguished, and the society weakened."
Within these united States of America, we see this very wrong happening. No one know what will happen, for certain, when the police are called, or when and if the case goes to trial. More often, the Constitutions are no longer allowed within the Courts to prove that the Law itself is the Crime against that Constitution. Hearing after hearing, sometimes many years after the person is charged with a crime, might the case go to trial, or be dismissed with the accused having served many months in jail or prison.
I will let the news reports of this time tell the rest of this story.)
§ 159. To establish good laws.
There are two methods of making justice flourish — good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.), we have already shown that a nation ought to establish just and wise laws, and have also pointed out the reasons why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights, without being misled by self-deception. Sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and, since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law. It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again are the civil laws.
(K. Notes: Regarding: "There are two methods of making justice flourish — good laws, and the attention of the superiors to see them executed..... It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again are the civil laws."
With these united States of America, we have a reasonably sound system by which to grant to government its just powers. We have not followed once, since the system was initiated in 1776. Because we, the people failed our duty in controlling our government, most of the laws the government enforces and sentences people to jails and prisons will directly violate one or more elements of The Constitution. Then, the people responsible for maintaining justice will selectively enforce those bad laws, and then, selectively prosecute them, then selectively punish those convicted. Such a system leaves all people questioning whether or not there really is or can be any justice in this nation.)
§ 160. to enforce them.
The best laws are useless if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.
§ 161. Functions and duties of the prince in that respect.
We have already observed (§ 41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperitoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, et bellorum et pacis, recte possit gubernari. The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body, — it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.
§ 162. How he is to dispense justice.
The executive power naturally belongs to the sovereign, — to every conductor of a people: he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it. When the laws are established, it is the prince's province to have them put in execution. To support them with vigor, and to make a just application of them to all cases that present themselves, is what we call rendering justice. And this is the duty of the sovereign, who is naturally the judge of his people. We have seen the chiefs of some small states perform these functions themselves: but this custom becomes inconvenient, and even impossible in a great kingdom.
(K. Notes: Both, The Declaration and The Constitution somewhat reverse, or at least clarify Vattel's statement, "...he is supposed to be invested with it, in its fullest extent, when the fundamental laws do not restrict it."
The Declaration specifically tells us that — government only get their honorable powers, once the people have agreed to grant those powers in accord with the terms of The Declaration.
The Constitution, Amendments 9 & 10 tells us the relationship between the people's rights and the government's powers. Amendment 9 tells us that the people's rights are unlisted and unlimited; where as the government powers are limited and must be listed.)
§ 163. His duty to appoint upright and enlightened judges.
The best and safest method of distributing justice is by establishing judges, distinguished by their integrity and knowledge, to take cognizance of all the disputes that may arise between the citizens. It is impossible for the prince to take upon himself this painful task: he cannot spare sufficient time either for the thorough investigation of all causes, or even for the acquisition of the knowledge necessary to decide them. As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance, — intrusting the others to officers and magistrates who shall execute them under his authority. There is no inconvenience in trusting the decision of a lawsuit to a body of prudent, honest, and enlightened men: — on the contrary it is the best mode the prince can possibly adopt; and he fully acquits himself of the duty he owes to his people in this particular, when he gives them judges adorned with all the qualities suitable to ministers of justice: he has then nothing more to do but to watch over their conduct, in order that they may not neglect their duty.
(K. Notes: Vattel states; "As the sovereign cannot personally discharge all the functions of government, he should, with a just discernment, reserve to himself such as he can successfully perform, and are of most importance, — intrusting the others to officers and magistrates who shall execute them under his authority"
The System established, but not yet followed, in these united States of America, is of grand design and solves most of this problem — if it were actually followed by the people and the government alike. The president, would not appoint these people: but make certain that the election-laws contracted under The Declaration have been properly conducted; then removing all those who were not properly qualified by the people and/or not properly voted into office by the people.
Then, when those government officers in each government level are properly vetted and voted into office; it is they who will select their necessary officers, as appropriate government-level constitution allows.
The President of "The United States of America", the government, is essentially the Domestic Referee regarding all government issues and matters under The Constitution for the United States of America. In this regard, The President will select the most trusted agents he can find to carry out and see to it that The Constitutional edicts are properly carried out in the government's lower-levels.)
§ 164. The ordinary courts should determine causes relating to the revenue.
The establishment of courts of justice is particularly necessary for the decision of all fiscal causes, — that is to say, all the disputes that may arise between the subjects on the one hand, and, on the other, the persons who exert the profitable prerogatives of the prince. It would be very unbecoming, and highly improper for a prince, to take upon him to give judgment in his own cause: — he cannot be too much on his guard against the illusions of interest and self-love; and even though he were capable of resisting their influence, still he ought not to expose his character to the rash judgments of the multitude. These important reasons ought even to prevent his submitting the decision of causes in which he is concerned, to the ministers and counselors particularly attached to his person. In all well-regulated states, in countries that are really states, and not the dominions of a despot, the ordinary tribunals decide all causes in which the sovereign is a party, with as much freedom as those between private persons.
§ 165. Necessary to establish supreme courts, from whose sentence there shall be no appeal.
The end of all trials at law is justly to determine the disputes that arise between the citizens. If, therefore, suits are prosecuted before an inferior judge, who examines all the circumstances and proofs relating to them, it is very proper, that, for the greater safety, the party condemned should be allowed to appeal to a superior tribunal, where the sentence of the former judge may be examined, and reversed, if it appear to be ill-founded. But it is necessary that this supreme tribunal should have the authority of pronouncing a definitive sentence without appeal: otherwise the whole proceeding will be vain, and the dispute can never be determined.
The custom of having recourse to the prince himself, by laying a complaint at the foot of the throne, when the cause has been finally determined by a supreme court, appears to be subject to very great inconveniences. It is more easy to deceive the prince by specious reasons, than a number of magistrates well skilled in the knowledge of the laws; and experience too plainly shows what powerful resources are derived from favor and intrigue in the courts of kings. If this practice be authorized by the laws of the state, the prince ought always to fear that these complaints are only formed with a view of protracting a suit, and procrastinating a just condemnation. A just and wise sovereign will not admit them without great caution; and if he reverses the sentence that is complained of, he ought not to try the cause himself, but submit it to the examination of another tribunal, as is the practice in France. The ruinous length of these proceedings authorizes us to say that it is more convenient and advantageous to the state, to establish a sovereign tribunal, whose definitive decrees should not be subject to a reversal even by the prince himself. It is sufficient for the security of justice that the sovereign keep a watchful eye over the judges and magistrates, in the same manner as he is bound to watch all the other officers in the state, — and that he have power to call to an account and to punish such as are guilty of prevarication.
§ 166. The prince bound to observe the forms of justice.
When once this sovereign tribunal is established, the prince cannot meddle with its decrees; and, in general, he is absolutely obliged to preserve and maintain the forms of justice. Every attempt to violate them is an assumption of arbitrary power, to which it cannot be presumed that any nation could ever have intended to subject itself.
When those forms are defective, it is the business of the legislator to reform them. This being done or procured in a manner agreeable to the fundamental laws, will be one of the most salutary benefits the sovereign can bestow upon his people. To preserve the citizens from the danger of ruining themselves in defending their rights, — to repress and destroy that monster, chicanery, — will be an action more glorious in the eyes of the wise man, than all the exploits of a conqueror.
§ 167. The Prince ought to support the authority of the judges, and enforce their decrees.
Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which they would be vain and delusive; for justice would not be rendered to the citizens.
Justice is administered in the name of the sovereign; the prince relies on the judgment of the courts, and, with good reason, looks upon their decisions as sound law and justice. His part in this branch of the government is then to maintain the authority of the judges, and to cause their sentences to be executed; without which they would be vain and delusive; for justice would not be rendered to the citizens.
§ 168. Distributive justice:—distribution of employments and rewards.
There is another kind of justice named attributive or distributive, which in general consists in treating every one according to his deserts. This virtue ought to regulate the distribution of public employments, honors, and rewards in a state. It is, in the first place, a duty the nation owes to herself, to encourage good citizens, to excite every one to virtue by honors and rewards, and to intrust with employments such persons only as are capable of properly discharging them. In the next place, it is a duty the nation owes to individuals, to show herself duly attentive to reward and honor merit. Although a sovereign has the power of distributing his favors and employments to whomsoever he pleases, and nobody has a perfect right to any post or dignity, — yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation. There is hardly any fault that in the course of time can become more prejudicial to a state: it introduces into it a general relaxation; and its public affairs, being managed by incompetent hands, cannot fail to be attended with ill-success. A powerful state may support itself for some time by its own weight; but at length it falls into decay; and this is perhaps one of the principal causes of the revolutions observable in great empires. The sovereign is attentive to the choice of those he employs, while he feels himself obliged to watch over his own safety, and to be on his guard: but when once he thinks himself elevated to such a pitch of greatness and power as leaves him nothing to fear, he follows his own caprice, and all public offices are distributed by favor.
(K. Notes: "— yet a man who by intense application has qualified himself to become useful to his country, and he who has rendered some signal service to the state, may justly complain if the prince overlooks them, in order to advance useless men without merit. This is treating them with an ingratitude that is wholly unjustifiable, and adapted only to extinguish emulation." To the contrary. emulation is not extinguished. Many who see that it is by connection that rewards are given; these people will develop many connections, but few, if any useful skills or useful knowledge.)
§ 169. Punishment of transgressors:—foundation of the right of punishing.
The punishment of transgressors commonly belongs to distributive justice, of which it is really a breach; since good order requires that malefactors should be made to suffer the punishments they have deserved. But, if we would clearly establish this on its true foundations, we must recur to first principles. The right of punishing, which in a state of nature belongs to each individual, is founded on the right of personal safety. Every man has a right to preserve himself from injury, and by force to provide for his own security against those who unjustly attack him. For this purpose he may, when injured, inflict a punishment on the aggressor, as well with the view of putting it out of his power to injure him for the future, or of reforming him, as of restraining, by his example, all those who might be tempted to imitate him. Now, when men unite in society, — as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it; — that is to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to its conductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice. Two things are to be considered in this part of government, — the laws, and their execution.
(K. Notes: Regarding; "Now, when men unite in society, — as the society is thenceforward charged with the duty of providing for the safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large."
The U. S. Constitution almost resolves this issue with Amendment 13, which states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This gives to government the right to punish others for private injury. However, it fails and falls short when the duly convicted person serves time behind bars, the value of the individual's labor going to the government, as opposed to going to the individual injured.
The just punishment system, where those violations against another person's rights are codified into law [such as assault, robbery, vandalism, and such]; there should be a value-time relationship. For example: If $25 = 1 day in jail or prison; if the damages total $100; the government office pays to the injured person the $100. Then, the duly-convicted person serves 4 days in jail to work off that debt, now, to the government. This labor, especially for minor-level crimes can be a community-service such as picking up trash, cutting public lawns, digging ditches, etc. 12 to 16 hours a day for 4 days. Though some will claim this is cruel and unusual punishment that Amendment 8 prohibits; Amendment 13, simply by following Amendment 8, clarifies that this use of slavery and involuntary servitude are neither cruel nor unusual punishments.)
§ 170. Criminal laws.
It would be dangerous to leave the punishment of transgressors entirely to the discretion of those who are invested with authority. The passions might interfere in a business which ought to be regulated only by justice and wisdom. The punishment pre-ordained for an evil action, lays a more effectual restraint on the wicked than a vague fear, in which they may deceive themselves. In short, the people, who are commonly moved at the sight of a suffering wretch, are better convinced of the justice of his punishment, when it is inflicted by the laws themselves. Every well-governed state ought then to have its laws for the punishment of criminals. It belongs to the legislative power, whatever that be, to establish them with justice and wisdom. But this is not a proper place for giving a general theory of them: we shall therefore only say that each nation ought, in this as in every other instance, to choose such laws as may best suit her peculiar circumstances.
(K. Notes: That the punishment should be specifically set in the specific law. [Such as: if you are convicted of stealing cash or product of $1,000; whether you return the item or not, whether you eventually pay for the item or not; in accord with the earlier example, the duly convicted person will serve 40 days hard labor for the act of theft.)
§ 171. Degree of punishment.
We shall only make one observation, which is connected with the subject in hand, and relates to the degree of punishment. From the foundation even of the right of punishing, and from the lawful end of inflicting penalties, arises the necessity of keeping them within just bounds. Since they are designed to procure the safety of the state and of the citizens, they ought never to be extended beyond what that safety requires. To say that any punishment is just since the transgressor knew before-hand the penalty he was about to incur, is using a barbarous language, repugnant to humanity, and to the law of nature, which forbids our doing any ill to others, unless they lay us under the necessity of inflicting it in our own defense and for our own security. Whenever then a particular crime is not much to be feared in society, as when the opportunities of committing it are very rare, or when the subjects are not inclined to it, too rigorous punishments ought not to be used to suppress it. Attention ought also to be paid to the nature of the crime; and the punishment should be proportioned to the degree of injury done to the public tranquillity and the safety of society, and the wickedness it supposes in the criminal.
These maxims are not only dictated by justice and equity, but also as forcibly recommended by prudence and the art of government. Experience shows us that the imagination becomes familiarized to objects which are frequently presented to it. If, therefore, terrible punishments are multiplied, the people will become daily less affected by them, and at length contract, like the Japanese, a savage and ferocious character: — these bloody spectacles will then no longer produce the effect designed; for they will cease to terrify the wicked. It is with these examples as with honors: — a prince who multiplies titles and distinctions to excess, soon depreciates them, and makes an injudicious use of one of the most powerful and convenient springs of government. When we recollect the practice of the ancient Romans with respect to criminals — when we reflect on their scrupulous attention to spare the blood of the citizens, — we cannot fail to be struck at seeing with how little ceremony it is now-a-days shed in the generality of states. Was then the Roman republic but ill governed? Does better order and greater security reign among us? — It is not so much the cruelty of the punishments, as a strict punctuality in enforcing the penal code, that keeps mankind within the bounds of duty: and if simple robbery is reserved to check the hand of the murderer?
§ 172. Execution of the laws.
The execution of the laws belongs to the conductor of the state: he is intrusted with the care of it, and is indispensably obliged to discharge it with wisdom. The prince then is to see that the criminal laws be put in execution; but he is not to attempt in his own person to try the guilty. Besides the reasons we have already alleged in treating of civil causes, and which are of still greater weight in regard to those of a criminal nature — to appear in the character of a judge pronouncing sentence on a wretched criminal, would ill become the majesty of the sovereign, who ought in every thing to appear as the father of his people. It is a very wise maxim commonly received in France, that the prince ought to reserve to himself all matters of favor, and leave it to the magistrates to execute the rigor of justice. But then justice ought to be exercised in his name, and under his authority. A good prince will keep a watchful eye over the conduct of the magistrates; he will oblige them to observe scrupulously the established forms, and will himself take care never to break through them. Every sovereign who neglects or violates the forms of justice in the prosecution of criminals, makes large strides towards tyranny; and the liberty of the citizens is at an end when once they cease to be certain that they cannot be condemned, except in pursuance of the laws, according to the established forms, and by their ordinary judges. The custom of committing the trial of the accused party to commissioners chosen at the pleasure of the court, was the tyrannical invention of some ministers who abused the authority of their master. By this irregular and odious procedure, a famous minister always succeeded in destroying his enemies. A good prince will never give his consent to such a proceeding, if he has sufficient discernment to foresee the dreadful abuse his ministers may make of it. If the prince ought not to pass sentence himself — for the same reason, he ought not to aggravate the sentence passed by the judges.
§ 173. Right of pardoning.
The very nature of government requires that the executor of the laws should have the power of dispensing with them when this may be done without injury to any person, and in certain particular cases where the welfare of the state requires an exception. Hence the right of granting pardons is one of the attributes of sovereignty. But, in his whole conduct, in his severity as well as his mercy, the sovereign ought to have no other object in view than the greater advantage of society. A wise prince knows how to reconcile justice with clemency — the care of the public safety with that pity which is due to the unfortunate.
§ 174. Internal police.
The internal police consists in the attention of the prince and magistrates to preserve every thing in order. Wise regulations ought to prescribe whatever will best contribute to the public safety, utility, and convenience; and those who are invested with authority cannot be too attentive to enforce them. By a wise police, the sovereign accustoms the people to order and obedience, and preserves peace, tranquillity, and concord among the citizens. The magistrates of Holland are said to possess extraordinary talents in this respect: — a better police prevails in their cities, and even their establishments in the Indies, than in any other places in the known world.
§ 175. Duel or single combat.
Laws and the authority of the magistrates having been substituted in the room of private war, the conductors of a nation ought not to suffer individuals to attempt to do themselves justice, when they can have recourse to the magistrates. Dueling — that species of combat, in which the parties engage on account of a private quarrel — is a manifest disorder repugnant to the ends of civil society. This frenzy was unknown to the ancient Greeks and Romans, who raised to such a height the glory of their arms: we received it from barbarous nations who knew no other law but the sword. Louis XIV. the greatest praise for his endeavors to abolish this savage custom.
§ 176. Means of putting a stop to that disorder.
But why was not that prince made sensible that the most severe punishments were incapable of curing the rage for dueling? They did not reach the source of the evil; and since a ridiculous prejudice had persuaded all the nobility and gentlemen of the army, that a man who wears a sword is bound in honor to avenge with his own hand the least injury he has received; this is the principle on which it is proper to proceed. We must destroy this prejudice, or restrain it by a motive of the same nature. While a nobleman, by obeying the law, shall be regarded by his equals as a coward and as a man dishonored — while an officer in the same case shall be forced to quit the service — can you hinder his fighting by threatening him with death? On the contrary, he will place a part of his bravery in doubly exposing his life in order to wash away the affront. And, certainly, while the prejudice subsists, while a nobleman or an officer cannot act in opposition to it, without embittering the rest of his life, I do not know whether we can justly punish him who is forced to submit to his tyranny, or whether he be very guilty with respect of morality. That worldly honor, be it as false and chimerical as you please, is to him a substantial and necessary possession, since without it he can neither live with his equals, nor exercise a profession that is often his only resource. When, therefore, any insolent fellow would unjustly ravish from him that chimera so esteemed and so necessary, why may he not defend it as he would his life and property against a robber? As the state does not permit an individual to pursue with arms in his hand the usurper of his property, because he may obtain justice from the magistrate — so, if the sovereign will not allow him to draw his sword against the man from whom he has received an insult, he ought necessarily to take such measures that the patience and obedience of the citizen who has been insulted shall not prove prejudicial to him. Society cannot deprive man of his natural right of making war against an aggressor, without furnishing him with some other means of securing himself from the evil his enemy would do him. On all those occasions where the public authority cannot lend us its assistance, we resume our original and natural right of self-defense. Thus a traveler may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate. Thus a chaste virgin would be praised for taking away the life of a brutal ravisher who attempted to force her to his desires.
Till men have got rid of this Gothic idea, that honor obliges them, even in contempt of the laws, to avenge their personal injuries with their own hands, the most effectual method of putting a stop to the effects of this prejudice would perhaps be to make a total distinction between the offended and the aggressor — to pardon the former without difficulty, when it appears that his honor has been really attacked — and to exercise justice without mercy on the party who has committed the outrage. And as to those who draw the sword for trifles and punctilios, for little piques, or railleries in which honor is not concerned, I would have them severely punished. By this means a restraint would be put on those peevish and insolent folks who often reduce even the moderate men to a necessity of chastising them. Every one would be on his guard, to avoid being considered as the aggressor; and with a view to gain the ad vantage of engaging in duel (if unavoidable) without incurring the penalties of the law, both parties would curb their passions; by which means the quarrel would fall of itself, and be attended with no consequences. It frequently happens that a bully is at bottom a coward; he gives himself haughty airs, and offers insult, in hopes that the rigor of the law will oblige people to put up with his insolence. And what is the consequence? — A man of spirit will run every risk, rather than submit to be insulted: the aggressor dares not recede: and a combat ensues, which would not have taken place, if the latter could have once imagined that there was nothing to prevent the other from chastising him for his presumption — the offended person being acquitted by the same law that condemns the aggressor.
To this first law, whose efficacy would, I doubt not, be soon proved by experience, it would be proper to add the following regulations: — 1. Since it is an established custom that the nobility and military men should appear armed, even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. 2. It would be proper to establish a particular court, to determine, in a summary manner, all affairs of honor between persons of these two orders. The marshals' court in France is in possession of this power; and it might be invested with it in a more formal manner and to a greater extent. The governors of provinces and strong places, with their general officers — the colonels and captains of each regiment — might, in this particular, act as deputies to the marshals. These courts, each in his own department, should alone confer the right of wearing a sword. Every nobleman at sixteen or eighteen years of age, and every soldier at his entrance into the regiment, should be obliged to appear before the court to receive the sword. 3. On its being there delivered to him, he should be informed that it is intrusted to him only for the defense of his country; and care might be taken to inspire him with true ideas of honor. 4. It appears to me of great importance to establish, for different cases, punishments of a different nature. Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment — even the punishment of death, according to the grossness of the insult: and, as I before observed, no favor should be shown to the offender in case a duel was the consequence, while at the same time the other party should stand fully acquitted. Those who fight on slight occasions, I would not have condemned to death, unless in such cases where the author of the quarrel — he, I mean, who carried it so far as to draw his sword, or to give the challenge — has killed his adversary. People hope to escape punishment when it is too severe; and, besides, a capital punishment in such cases is not considered as infamous. But let them be ignominiously degraded from the rank of nobility and the use of arms, and forever deprived of the right of wearing a sword, without the least hope of pardon: this would be the most proper method to restrain men of spirit, provided that due care was taken to make a distinction between different offenders, according to the degree of the offence. As to persons below the rank of nobility, and who do not belong to the army, their quarrels should be left to the cognizance of the ordinary courts, which in case of bloodshed should punish the offenders according to the common laws against violence and murder. It should be the same with respect to any quarrel that might arise between a commoner and a man entitled to carry arms: it is the business of the ordinary magistrate to preserve older and peace between those two classes of men, who cannot have any points of honor to settle the one with the other. To protect the people against the violence of those who wear the sword, and to punish the former severely if they should dare to insult the latter, should further be, as it is at present, the business of the magistrate.
I am sanguine enough to believe that these regulations, and this method of proceeding, if strictly adhered to, would extirpate that monster, dueling, which the most severe laws have been unable to restrain. They go to the source of the evil, by preventing quarrels, and oppose a lively sensation of true and real honor to that false and punctilious honor which occasions the spilling of so much blood. It would be worthy a great monarch to make a trial of it: its success would immortalize his name: and by the bare attempt he would merit the love and gratitude of his people.
CHAPTER 14: The Third Object of a Good Government, — To Fortify Itself Against External Attacks
§ 177. A nation ought to fortify itself against external attacks.
WE have treated at large of what relates to the felicity of a nation: the subject is equally copious and complicated. Let us now proceed to a third division of the duties which a nation owes to itself, — a third object of good government. One of the ends of political society is to defend itself with its combined strength against all external insult or violence (§ 15). If the society is not in a condition to repulse an aggressor, it is very imperfect, — it is unequal to the principal object of its destination, and cannot long subsist. The nation ought to put itself in such a state as to be able to repel and humble an unjust enemy: this is an import duty, which the care of its own perfection, and even of its preservation, imposes both on the state and its conductor.
§ 178. National strength.
It is its strength alone that can enable a nation to repulse all aggressors, to secure its rights, and render itself everywhere respectable. It is called upon by every possible motive to neglect no circumstance that can tend to place it in this happy situation. The strength of a state consists in three things, — the number of citizens, their military virtues, and their riches. Under this last article we may comprehend fortresses, artillery, arms, horses, ammunition, and, in general, all that immense apparatus at present necessary in war, since they can all be procured with money.
§ 179. Increase of population.
To increase the number of the citizens as far as it is possible or convenient, is then one of the first objects that claim the attentive care of the state or its conductor: and this will be successfully effected by complying with the obligation to procure the country a plenty of the necessaries of life, —; by enabling the people to support their families with the fruits of their labor, —; by giving proper directions that the poorer classes, and especially the husbandmen, be not harassed and oppressed by the levying of taxes, — by governing with mildness and in a manner which, instead of disgusting and dispersing the present subjects of the state, shall rather attract new ones, — and, finally, by encouraging marriage, after the example of the Romans. That nation, so attentive to every thing capable of increasing and supporting their power, made wise laws against celibacy (as we have already observed in § 149), and granted privileges and exemptions to married men, particularly to those who had numerous families: laws that were equally wise and just, since a citizen who rears subjects for the state has a right to expect more favor from it than the man who chooses to live for himself alone.
(K. Notes: "after the example of the Romans. That nation, so attentive to every thing capable of increasing and supporting their power, made wise laws against celibacy" The number of population is not as important as the military ability of the citizens who are there. Many a huge army have been defeated by small bands of determined people who desire to preserve their way of life. This also goes a long way towards education.)
Every thing tending to depopulate a country is a defect in a state not overstocked with inhabitants. We have already spoken of convents and the celibacy of priests. It is strange that establishments so directly repugnant to the duties of a man and citizen, as well as to the advantage and safety of society, should have found such favor, and that princes, instead of opposing them, as it was their duty to do, should have protected and enriched them. A system of policy, that dextrously took advantage of superstition to extend its own power, led princes and subjects astray, caused them to mistake their real duties, and blinded sovereigns even with respect to their own interest. Experience seems at length to have opened the eyes of nations and their conductors; the pope himself (let us mention it to the honor of Benedict XIV.) endeavors gradually to reform so palpable an abuse; by his orders, none of his dominions are any longer permitted to take the vow of celibacy before they are twenty-five years of age. That wise pontiff gives the sovereigns of his communion a salutary example; he invites them to attend at length to the safety of their states, — to narrow at least, if they cannot entirely close up, the avenues of that sink that drains their dominions. Take a view of Germany; and there, in countries which are in all other respects upon an equal footing, you will see the protestant states twice as populous as the catholic ones. Compare the desert state of Spain with that of England, teeming with inhabitants: survey many fine provinces, even in France, destitute of hands to till the soil; and then tell me, whether the many thousands of both sexes, who are now locked up in convents, would not serve God and their country infinitely better by peopling those fertile plains with useful cultivators? It is true, indeed, that the catholic cantons of Switzerland are nevertheless very populous: but this is owing to a profound peace, and the nature of the government, which abundantly repair the losses occasioned by convents. Liberty is able to remedy the greatest evils; it is the soul of a state, and was with great justice called by the Romans alma Libertas.
§ 180. Valour.
A cowardly and undisciplined multitude are incapable of repulsing a warlike enemy: the strength of the state consists less in the number than the military virtues of its citizens. Valor, that heroic virtue which makes us undauntedly encounter danger in defense of our country, is the firmest support of the state: it renders it formidable to its enemies, and often even saves it the trouble of defending itself. A state whose reputation in this respect is once well established, will be seldom attacked, if it does not provoke other states by its enterprises. For above two centuries the Swiss have enjoyed a profound peace, while the din of arms resounded all around them, and the rest of Europe was desolated by the ravages of war. Nature gives the foundation of valor; but various causes may animate it, weaken it, and even destroy it, A nation ought then to seek after and cultivate a virtue so useful; and a prudent sovereign will take all possible measures to inspire his subjects with it: — his wisdom will point out to him the means. It is this generous flame that animates the French nobility: fired with a love of glory and of their country, they fly to battle, and cheerfully spill their blood in the field of honor. To what an extent would they not carry their conquests, if that kingdom were surrounded by nations less warlike! The Briton, generous and intrepid, resembles a lion in combat; and, in general, the nations of Europe surpass in bravery all the other people upon earth.
§ 181. Other military virtues.
But valor alone is not always successful in war: constant success can only be obtained by an assemblage of all the military virtues. History shows us the importance of ability in the commanders, of military discipline, frugality, bodily strength, dexterity, and being inured to fatigue and labor. These are so many distinct branches which a nation ought carefully to cultivate. It was the assemblage of all these that raised so high the glory of the Romans, and rendered them the masters of the world. It were a mistake to suppose that valor alone produced those illustrious exploits of the ancient Swiss — the victories of Morgarten, Sempach, Laupen, Morat, and many others. The Swiss not only fought with intrepidity; they studied the art of war, — they inured themselves to its toils, — they accustomed themselves to the practice of all its maneuvers, — and their very love of liberty made them submit to a discipline which could alone secure to them that treasure, and save their country. Their troops were no loss celebrated for their discipline than their bravery. Mezeray, after having given an account of the behavior of the Swiss at the battle of Dreux, adds these remarkable words; "in the opinion of all the officers of both sides who were present, the Swiss, in that battle, under every trial, against infantry and cavalry, against French and against Germans, gained the palm for military discipline, and acquired the reputation of being the best infantry in the world."
§ 182. Riches.
Finally, the wealth of a nation constitutes a considerable part of its power, especially in modern times, when war requires such immense expenses. It is not simply in the revenues of the sovereign, or the public treasure, that the riches of a nation consist: its opulence is also rated from the wealth of individuals. We commonly call a nation rich, when it contains a great number of citizens in easy and affluent circumstances. The wealth of private persons really increases the strength of the nation; since they are capable of contributing large sums towards supplying the necessities of the state, and that, in a case of extremity, the sovereign may even employ all the riches of his subjects in the defense, and for the safety of the state, in virtue of the supreme command with which he is invested, as we shall hereafter show. The nation, then, ought to endeavor to acquire those public and private riches that are of such use to it: and this is a new reason for encouraging a commerce with other nations, which is the source from whence they flow, — and a new motive for the sovereign to keep a watchful eye over the different branches of foreign trade carried on by his subjects, in order that he may preserve and protect the profitable branches, and cut off those that occasion the exportation of gold and silver.
§ 183. Public revenues and taxes.
It is requisite that the state should possess an income proportionate to its necessary expenditures. That income may be supplied by various means, — by lands reserved for that purpose, by contributions, taxes of different kinds, etc. — but of this subject we shall treat in another place.
§ 184. The nation ought not to increase her power by unlawful means.
We have here summed up the principal ingredients that constitute that strength which a nation ought to augment and improve. Can it be necessary to add the observation, that this desirable object is not to be pursued by any other methods than such as are just and innocent? A laudable end is not sufficient to sanctify the means; for these ought to be in their own nature lawful. The law of nature cannot contradict itself: if it forbids an action as unjust or dishonest in its own nature, it can never permit it for any purpose whatever. And therefore in those cases where that object, in itself so valuable and so praiseworthy, cannot be attained without employing unlawful means, it ought to be considered as unattainable, and consequently be relinquished. Thus, we shall show, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandize itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbor's property.
(K. Notes: "Thus, we shall show, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandize itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbor's property."
The practice of manifest destiny, adhered to by many united States government officers violate that concept as well as violating The Declaration's war, trade, and foreign policy in the second to last paragraph, "We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends."
These united States of America is built and designed as a Nation of Consent, not conquest.)
§ 185. Power is but relative.
The power of a nation is relative, and ought to be measured by that of its neighbors, or of all the nations from whom it has any thing to fear. The state is sufficiently powerful when it is capable of causing itself to be respected, and of repelling whoever would attack it. It may be placed in this happy situation, either by keeping up its own strength equal or even superior to that of its neighbors, or by preventing their rising to a predominant and formidable power. But we can not show here in what cases and by what means a state may justly set bounds to the power of another. It is necessary, first, to explain the duties of a nation towards others, in order to combine them afterwards with its duties towards itself. For the present, we shall only observe, that a nation, while it obeys the dictates of prudence and wise policy in this instance, ought never to lose sight of the maxims of justice.
CHAPTER 15: Of the Glory of a Nation
§ 186. Advantages of glory.
THE glory of a nation is intimately connected with its power, and indeed forms a considerable part of it. It is this brilliant advantage that procures it the esteem of other nations, and renders it respectable to its neighbors. A nation whose reputation is well established — especially one whose glory is illustrious — is courted by all sovereigns; they desire its friendship, and are afraid of offending it. Its friends, and those who wish to become so, favor its enterprises; and those who envy its prosperity are afraid to show their ill-will.
§ 187. Duty of the nation.—How true glory is acquired.
It is, then, of great advantage to a nation to establish its reputation and glory; hence, this becomes one of the most important of the duties it owes to itself. True glory consists in the favorable opinion of men of wisdom and discernment; it is acquired by the virtues or good qualities of the head and the heart, and by great actions, which are the fruits of those virtues. A nation may have a two-fold claim to it; — first, by what it does in its national character, by the conduct of those who have the administration of its affairs, and are invested with its authority and government; and, secondly, by the merit of the individuals of whom the nation is composed.
§ 188. Duty of the prince.
A prince, a sovereign of whatever kind, being bound to exert every effort for the good of the nation, is doubtless obliged to extend its glory as far as lies in his power. We have seen that his duty is to labor after the perfection of the state, and of the people who are subject to him; by that means he will make them merit a good reputation and glory. He ought always to have this object in view, in every thing he undertakes, and in the use he makes of his power. Let him, in all his actions, display justice, moderation, and greatness of soul, and he will thus acquire for himself and his people a name respected by the universe, and not less useful than glorious. The glory of Henry IV, saved France. In the deplorable state in which he found affairs, his virtues gave animation to the loyal part of his subjects, and encouraged foreign nations to lend him their assistance, and to enter into an alliance with him against the ambitious Spaniards. In his circumstances, a weak prince of little estimation would have been abandoned by all the world; people would have been afraid of being involved in his ruin.
Besides the virtues which constitute the glory of princes as well as of private persons, there is a dignity and decorum that particularly belong to the supreme rank, and which a sovereign ought to observe with the greatest care. He cannot neglect them without degrading himself, and casting a stain upon the state. Every thing that emanates from the throne ought to bear the character of purity, nobleness, and greatness. What an idea do we conceive of a people, when we see their sovereign display, in his public acts, a meanness of sentiment by which a private person would think himself disgraced! All the majesty of the nation resides in the person of the prince; what, then, must become of it, if he prostitutes it, or suffers it to be prostituted by those who speak and act in his name? The minister who puts into his master's mouth a language unworthy of him, deserves to be turned out of office with every mark of ignominy.
§ 189. Duty of the citizens.
The reputation of individuals is, by a common and natural mode of speaking and thinking, made to reflect on the whole nation. In general, we attribute a virtue or a vice to a people, when that vice or that virtue is frequently observed among them. We say that a nation is warlike, when it produces a great number of brave warriors; that it is learned, when there are many learned men among the citizens; and that it excels in the arts, when it produces many able artists. On the other hand, we call it cowardly, lazy, or stupid, when men of those characters are more numerous there than elsewhere. The citizens, being obliged to labor with all their might to promote the welfare and advantage of their country, not only owe to themselves the care of deserving a good reputation, but they also owe it to the nation, whose glory is so liable to be influenced by theirs. Bacon, Newton, Descartes, Leibnitz, and Bernoulli, have each done honor to his native country, and essentially benefitted it by the glory he acquired. Great ministers, and great generals — an Oxenstiern, a Turenne, a Marlborough, a Ruyter — serve their country in a double capacity, both by their actions and by their glory. On the other hand, the fear of reflecting a disgrace on his country will furnish the good citizen with a new motive for abstaining from every dishonorable action. And the prince ought not to suffer his subjects to give themselves up to vices capable of bringing infamy on the nation, or even of simply tarnishing the brightness of its glory; he has a right to suppress and to punish scandalous enormities, which do a real injury to the state.
§ 190. Example of the Swiss.
The example of the Swiss is very capable of showing how advantageous glory may prove to a nation. The high reputation they have acquired for their valor, and which they still gloriously support, has preserved them in peace for above two centuries, and rendered all the powers of Europe desirous of their assistance. Louis XI., while dauphin, was witness of the prodigies of valor they performed at the battle of St. Jacques, near Basle, and he immediately formed the design of closely attaching to his interest so intrepid a nation. The twelve hundred gallant heroes, who on this occasion attacked an army of between fifty and sixty thousand veteran troops, first defeated the vanguard of the Armagnacs, which was eighteen thousand strong; afterwards, rashly engaging the main body of the army, they perished almost to a man, without being able to complete their victory. But, besides their terrifying the enemy, and preserving Switzerland from a ruinous invasion, they rendered her essential service by the glory they acquired for her arms. A reputation for an inviolable fidelity is no less advantageous to that nation; and they have at all times been jealous of preserving it. The canton of Zug punished with death that unworthy soldier who betrayed the confidence of the duke of Milan by discovering that prince to the French, when, to escape them, he had disguised himself in the habit of the Swiss, and placed himself in their ranks as they were marching out of Novara.
§ 191. Attacking the glory of a nation is doing her an injury.
Since the glory of a nation is a real and substantial advantage, she has a right to defend it, as well as her other advantages. He who attacks her glory does her an injury; and she has a right to exact of him, even by force of arms, a just reparation. We cannot, then condemn those measures, sometimes taken by sovereigns to support or avenge the dignity of their crown. They are equally just and necessary. If, when they do not proceed from too lofty pretensions, we attribute them to a vain pride, we only betray the grossest ignorance of the art of reigning: and despise one of the firmest supports of the greatness and safety of a state.
CHAPTER 16: Of the Protection Sought by a Nation, and Its Voluntary Submission to a Foreign Power
§ 192. Protection.
WHEN a nation is not capable of preserving herself from insult and oppression, she may procure the protection of a more powerful state. If she obtains this by only engaging to perform certain articles, as to pay a tribute in return for the safety obtained, — to furnish her protector with troops, — and to embark in all his wars as a joint concern, — but still reserving to herself the right of administering her own government at pleasure, — it is a simple treaty of protection, that does not all derogate from her sovereignty, and differs not from the ordinary treaties of alliance, otherwise than as it creates a difference in the dignity of the contracting parties.
§ 193. Voluntary submission of one nation to another.
But this matter is sometimes carried still farther; and, although a nation is under an obligation to preserve with the utmost care the liberty and independence it inherits from nature, yet when it has not sufficient strength of itself, and feels itself unable to resist its enemies, it may lawfully subject itself to a more powerful nation on certain conditions agreed to by both parties: and the compact or treaty of submission will thenceforward be the measure and rule of the rights of each. For, since the people who enter into subjection resign a right which naturally belongs to them, and transfer it to the other nation, they are perfectly at liberty to annex what conditions they please to this transfer; and the other party, by accepting their submission on this footing, engages to observe religiously all the clauses of the treaty.
§ 194. Several kinds of submission.
This submission may be varied to infinity, according to the will of the contracting parties: it may either leave the inferior nation a part of the sovereignty, restraining it only in certain respects, or it may totally abolish it, so that the superior nation shall become the sovereign of the other, — or, finally, the lesser nation may be incorporated with the greater, in order thenceforward to form with it but one and the same state: and then the citizens of the former will have the same privileges as those with whom they are united. The Roman history furnishes examples of each of these three kinds of submission, — 1. The allies of the Roman people, such as the inhabitants of Latium were for a long time, who, in several respects, depended on Rome, but, in all others, were governed according to their own laws, and by their own magistrates; — 2. The countries reduced to Roman provinces, as Capua, whose inhabitants submitted absolutely to the Romans; — 3. The nations to which Rome granted the freedom of the city. In after times the emperors granted that privilege to all the nations subject to the empire, and thus transformed all their subjects into citizens.
§ 195. Right of the citizens when the nation submits to a foreign power.
In the case of a real subjection to a foreign power, the citizens who do not approve this change are not obliged to submit to it: — they ought to be allowed to sell their effects and retire elsewhere. For, my having entered into a society does not oblige me to follow its fate, when it dissolves itself in order to submit to a foreign dominion. I submitted to the society as it then was, to live in that society as the member of a sovereign state, and not in another; I am bound to obey it, while it remains a political society: but, when it divests itself of the quality in order to receive its laws from another state, it breaks the bond of union between its members, and releases them from their obligations.
(K. Notes: This is a similar predicament that the Southern States of these united States of America found themselves. They seemed to see themselves, if certain person or persons were to be elected, that their rights would no longer be protected under The Constitutional contract that limited government powers.
Thus, they seceded from the united States of America and formed The Confederate States oif America.)
§ 196. These compacts annulled by the failure of protection.
When a nation has placed itself under the protection of another that is more powerful, or has even entered into subjection to it with a view to receiving its protection, — if the latter does not effectually protect the other in case of need, it is manifest, that, by failing in its engagements, it loses all the rights it had acquired by the convention, and that the other, being disengaged from the obligation it had contracted, re-enters into the possession of all its rights, and recovers its independence, or its liberty. It is to be observed that this takes place even in cases where the protector does not fail in his engagements through the want of good faith, but merely through inability. For, the weaker nation having submitted only for the sake of obtaining protection, — if the other proves unable to fulfill that essential condition, the compact is dissolved; — the weaker resumes its rights, and may, if it thinks proper, have recourse to a more effectual protection. Thus, the dukes of Austria, who had acquired a right of protection, and in some sort a sovereignty over the city of Lucerne, being unwilling or unable to protect it effectually, that city concluded an alliance with the three first cantons; and the dukes having carried their complaint to the emperor, the inhabitants of Lucerne replied, "that they had used the natural right common to all men, by which every one is permitted to endeavor to procure his own safety when he is abandoned by those who are obliged to grant him assistance."
(K. Notes: The 'possessions' or 'territories' of the united States of America might claim this lack of protection as a reason for leaving our union.)
§ 197. or by the infidelity of the party protected.
The law is the same with respect to both the contracting parties: if the party protected do not fulfill their engagements with fidelity, the protector is discharged from his; he may afterwards refuse his protection, and declare the treaty broken, in case the situation of his affairs renders such a step advisable.
§ 198. and by the encroachments of the protector.
In virtue of the same principle which discharges one of the contracting parties when the other fails in his engagements, if the more powerful nation should assume a greater authority over the weaker one than the treaty of protection or submission allows, the latter may consider the treaty as broken, and provide for its safety according to its own discretion. If it were otherwise, the inferior nation would lose by a convention which it had only formed with a view to its safety; and if it were still bound by its engagements when its protector abuses them and openly violates his own, the treaty would, to the weaker party, prove a downright deception. However, as some people maintain, that, in this case, the inferior nation has only the right of resistance and of imploring foreign aid, — and particularly as the weak cannot take too many precautions against the powerful, who are skillful in coloring over their enterprises, — the safest way is to insert in this kind of treaty a clause declaring it null and void whenever the superior power shall arrogate to itself any rights not expressly granted by the treaty.
§ 199. How the right of the nation protected is lost by her silence.
But if the nation that is protected, or that has placed itself in subjection on certain conditions, does not resist the encroachments of that power from which it has sought support — if it makes no opposition to them — if it preserves a profound silence, when it might and ought to speak — its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper. There would be no stability in the affairs of men, and especially in those of nations, if long possession, accompanied by the silence of the persons concerned, did not produce a degree of right. But it must be observed, that silence, in order to show tacit consent, ought to be voluntary. If the inferior nation proves that violence and fear prevented its giving testimonies of its opposition, nothing can be concluded from its silence, which therefore gives no right to the usurper.
(K. Notes: " its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper. There would be no stability in the affairs of men, and especially in those of nations, if long possession, accompanied by the silence of the persons concerned, did not produce a degree of right." In these united states of America, in accord with The Declaration of 1776, each and every generation may undo the perceived silence of the previous generation to take action to right the wrongs done in prior years.)
CHAPTER 17: How a Nation May Separate Itself from the State of Which it Is a Member, or Renounce its Allegiance to its Sovereign When it Is Not Protected
§ 200. Difference between the present case and those in the preceding chapter.
WE have said that an independent nation, which, without becoming a member of another state, has voluntarily rendered itself dependent on, or subject to it, in order to obtain protection, is released from its engagements as soon as that protection fails, even though the failure happen through the inability of the protector. But we are not to conclude that it is precisely the same case with every nation that cannot obtain speedy and effectual protection from its natural sovereign or the state of which it is a member. The two cases are very different. In the former, a free nation becomes subject to another state, — not to partake of all the other's advantages, and form with it an absolute union of interests (for, if the more powerful state were willing to confer so great a favor, the weaker one would be incorporated, not subjected), — but to obtain protection alone by the sacrifice of its liberty, without expecting any other return. When, therefore, the sole and indispensable condition of its subjection is (from what cause soever) not complied with, it is free from its engagements; and its duty towards itself obliges it to take fresh methods to provide for its own security. But the several members of one individual state, as they all equally participate in the advantages it procures, are bound uniformly to support it: they have entered into mutual engagements to continue united with each other, and to have on all occasions but one common cause. If those who are menaced or attacked might separate themselves from the others, in order to avoid a present danger, every state would soon be dismembered and destroyed. It is, then, essentially necessary for the safety of society, and even for the welfare of all its members, that each part should with all its might resist a common enemy, rather than separate from the others; and this is consequently one of the necessary conditions of the political association. The natural subjects of a prince are bound to him without any other reserve than the observation of the fundamental laws; — it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well: both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is, then, an essential and necessary condition of the political society, that the subjects remain united to their prince as far as in their power.
(K. Notes: This paragraph's content applies to these united States of America [1860's] and to the people generally, as it relates to our nation's actual pledge, ratified in 1776 with The unanimous Declaration.
The union of states, which makes up the united States of America, came together as free, sovereign, and independent states. We see this in The Declaration's words, "solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States;... and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."
In this aspect, when any State sees that the nation's government no longer protects that state's interests as equally as the other sttes, it is free to leave the union. No questions asked.
The sentence from above that The Declaration's Pledge addresses, "It is, then, essentially necessary for the safety of society, and even for the welfare of all its members, that each part should with all its might resist a common enemy, rather than separate from the others; and this is consequently one of the necessary conditions of the political association."
The united States of America's national pledge; "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." It is this pledge that is supposed to unify the people, who are the nation, into a power that is easily able to identify ad stop any DOMESTIC or foreign enemy that works to divide us by it political devices to pit us one sector of society against another.)
§ 201. Duty of the members of a state, or subjects of a prince, who are in danger.
When, therefore, a city or a province is threatened or actually attacked, it must not, for the sake of escaping the danger, separate itself from the state of which it is a member, or abandon its natural prince, even when the state or the prince is unable to give it immediate and effectual assistance. Its duty, its political engagements, oblige it to make the greatest efforts, in order to maintain itself in its present state. If it is overcome by force, necessity, that irresistible law, frees it from its former engagements, and gives it a right to treat with the conqueror, in order to obtain the best terms possible. If it must either submit to him or perish, who can doubt but that it may and even ought to prefer the former alternative? Modern usage is conformable to this decision: — a city submits to the enemy when it cannot expect safety from a vigorous resistance; it takes an oath of fidelity to him; and its sovereign lays the blame on fortune alone.
§ 202. Their right when they are abandoned.
CHAPTER 18: Of the Establishment of a Nation in a Country
§ 203. Possession of a country by a nation.
HITHERTO we have considered the nation merely with respect to itself, without any regard to the country it possesses. Let us now see it established in a country which becomes its own property and habitation. The earth belongs to mankind in general; destined by the Creator to be their common habitation, and to supply them with food, they all possess a natural right to inhabit it, and derive from it whatever is necessary for their subsistence, and suitable to their wants. But when the human race became extremely multiplied, the earth was no longer capable of furnishing spontaneously, and without culture, sufficient support for its inhabitants; neither could it have received proper cultivation from wandering tribes of men continuing to possess it in common. It therefore became necessary that those tribes should fix themselves somewhere, and appropriate to themselves portions of land, in order that they might, without being disturbed in their labor, or disappointed of the fruits of their industry, apply themselves to render those lands fertile, and thence derive their subsistence. Such must have been the origin of the rights of property and dominion: and it was a sufficient ground to justify their establishment. Since their introduction, the right which was common to all mankind is individually restricted to what each lawfully possesses. The country which a nation inhabits, whether that nation has emigrated thither in a body, or the different families of which it consists were previously scattered over the country, and, there uniting, formed themselves into a political society, — that country, I say, is the settlement of the nation, and it has a peculiar and exclusive right to it.
§ 204. Her right over the part in her possession.
This right comprehends two things: 1. The domain virtue of which the nation alone may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it every advantage it is capable of yielding. 2. The empire, or the right of sovereign command, by which the nation directs and regulates at its pleasure every thing that passes in the country.
§ 205. Acquisition of the sovereignty in a vacant country.
When a nation takes possession of a country to which no prior owner can lay claim, it is considered as acquiring the empire or sovereignty of it, at the same time with the domain. For, since, the nation is free and independent, it can have no intention, in settling in a country, to leave to others the right of command, or any of those rights that constitute sovereignty. The whole space over which a nation extends its government becomes the seal of its jurisdiction, and is called its territory.
§ 206. Another manner of acquiring the empire in a free country.
If a number of free families, scattered over an independent country, come to unite for the purpose of forming a nation or state, they altogether acquire the sovereignty over the whole country they inhabit: for they were previously in possession of the domain — a proportional share of it belonging to each individual family: and since they are willing to form together a political society, and establish a public authority, which every member of the society shall be bound to obey, it is evidently their intention to attribute to that public authority the right of command over the whole country.
§ 207. How a nation acquires the property of a desert country.
All mankind have an equal right to things that have not yet fallen into the possession of any one; and those things belong to the person who first takes possession of them. When, therefore, a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it: and, after it has sufficiently made known its will in this respect, it cannot be deprived of it by another nation. Thus navigators going on voyages of discovery, furnished with a commission from their sovereign, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nation: and this title has been usually respected, provided it was soon after followed by a real possession.
§ 208. A question on this subject.
But it is questioned whether a nation can, by the bare act of taking possession, appropriate to itself countries which it does not really occupy, and thus engross a much greater extent of territory than it is able to people or cultivate. It is not difficult to determine that such a pretension would be an absolute infringement of the natural rights of men, and repugnant to the views of nature, which, having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it. The law of nations will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use. In effect, when navigators have met with desert countries in which those of other nations had, in their transient visits, erected some monument to show their having taken possession of them, they have paid as little regard to that empty ceremony as to the regulation of the popes, who divided a great part of the world between the crowns of Castile and Portugal.
§ 209. Whether it be lawful to take possession of part of a country inhabited only by a few wandering tribes.
There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole? We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature, in confining the Indians within narrower limits, However, we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land of which they intended to take possession. This laudable example was followed by William Penn, and the colony of Quakers that he conducted to Pennsylvania.
(K. Notes: Three concepts seem appropriately connected here, to the thinking and actions of the people who would become and be what we know as united States Americans, today.
"We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate." If food in an area grows wild, and the people occupying that land take only as they need, but leave some to go to seed naturally and replenish itself, this is a form of agriculture that disturbs the land the least and leaves some resources for the other animals that become food and other resources for those same people.
"Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies." Interesting 'constant use' clause. If you own 5 acres; house and out buildings on 1 acre; garden on 2 acres; and do not graze or use recreationally or any other use than scenery, for the other 2 acres; does that mean that I can take the later 2 acres not under constant use as my own? Does that mean that I can take the first 2 acres as my own, since you only use them seasonably to grow crops? Vattel's arguments is merely a position to justify the taking of land from those he does not comprehend their lifestyle. It is a taking of convenience from those who have to favor those who do not have it. This is akin to me going to your bank, where you store your billion dollars. Knowing that you only use a thousand a year, and you are old or ill, you are not likely to be able to use much more than 1 million. Does this mean that I have right to take for myself 3/4 of your billion for my uses? If the natives use those areas for their different seasonal crops that nature provides; then their use is not occasional, but permanent for that crop.
"The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants." This would indicate that Vattel holds to the position that any one nation of people may dictate to any other nation of people how they are to live and their use of the land. In Vattel's example; one group, the Indians, choose open spaces and nature-provided foods. The Europeans choose over-population and depleting their land's ability to feed them. This does not give the overpopulated nation any special rights to invade or take from the lesser populated nation.)
§ 210. Colonies.
When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother-country, naturally becomes a part of the state, equally with its ancient possessions. Whenever, therefore, the political laws, or treaties, make no distinction between them, every thing said of the territory of a nation, must also extend to its colonies.START HERE
CHAPTER 19: Of Our Native Country, and Several Things That Relate to It
§ 211. What is our country.
§ 212. Citizens and natives.
§ 213. Inhabitants.
§ 214. Naturalisation.
§ 215. Citizens’ children born in a foreign country.
§ 216. Children born at sea.
§ 217. Children born in the armies of the state, or in the house of its minister at a foreign court.
§ 218. Settlement.
§ 219. Vagrants.
§ 220. Whether a person may quit his country.
§ 221. How a person may absent himself for a time.
§ 222. Variation of the political laws in that respect:— they must be obeyed.
§ 223. Cases in which a citizen has a right to quit his country.
§ 224. Emigrants.
§ 225. Sources of their right.
§ 226. If the sovereign infringes their right, he injures them.
§ 227. Supplicants.
§ 228. Exile and banishment.
§ 229. The exile and the banished man have a right to live somewhere.
§ 230. Nature of that right.
§ 231. Duty of nations towards them.
§ 232. A nation cannot punish them for faults committed out of her territories.
§ 233. except such as affect the common safety of mankind.
CHAPTER 20: Of Public, Common, and Private Property
§ 234. What the Romans called res communes.
§ 235. Aggregate wealth of a nation, and its divisions.
§ 236. Two modes of acquiring public property.
§ 237. The income of the public property is naturally at the sovereign’s disposal.
§ 238. The nation may grant him the use and property of her common possessions.
§ 239. or allow him the domain, and reserve to herself the use of them.
§ 240. Taxes.
§ 241. The nation may reserve to herself the right of imposing them.
§ 242. Sovereign possessing that power.
§ 243. Duties of the prince with respect to taxes.
§ 244. Eminent domain annexed to the sovereignty.
§ 245. Dominion over public property.
§ 246. The sovereign may make laws respecting the use of things possessed in common.
§ 247. Alienation of the property of a corporation.
§ 248. Use of common property.
§ 249. How each member is to enjoy it.
§ 250. Right of anticipation in the use of it.
§ 251. The same right in another case.
§ 252. Preservation and repairs of common possessions.
§ 253. Duty and right of the sovereign in that respect.
§ 254. Private property.
§ 255. The sovereign may subject it to regulations of police.
(K. Notes: Police defined, 1756.
§ 256. Inheritances.
CHAPTER 21: Of the Alienation of the Public Property, or the Domain, and That of a Part of the State
§ 257. The nation may alienate its public property.
§ 258. Duties of the nation in that respect.
§ 259. Duties of the prince.
§ 260. He cannot alienate the public property.
§ 261. The nation may give him a right to do it.
§ 262. Rules on that subject with respect to treaties between nation and nation.
§ 263. Alienation of a part of the state.
§ 264. Rights of the dismembered party.
§ 265. Whether the prince has power to dismember the state.
CHAPTER 22: Of Rivers Streams, and Lakes
§ 266. A river that separates two territories.
§ 267. Bed of a river which is dried up or takes another course.
§ 268. Right of alluvion.
§ 269. Whether alluvion produces any change in the right to river.
§ 270. Consequence of a river changing its bed.
§ 271.Works tending to turn the current.
§ 272. or generally prejudicial to the rights of others.
§ 273. Rules relative to interfering rights.
§ 274. Lakes.
§ 275. Increase of a lake.
§ 276. Land formed on the banks of a lake.
§ 277. Bed of a lake dried up.
§ 278. Jurisdiction over lakes and rivers.
CHAPTER 23: Of the Sea
§ 279. The sea, and its use.
§ 280. Whether the sea can be possessed, and its dominion appropriated.
§ 281. Nobody has a right to appropriate to himself the use of the open sea.
§ 282. A nation attempting to exclude another, does her an injury.
§ 283. She even does an injury to all nations.
§ 284. She may acquire an exclusive right by treaties.
§ 285. but not by prescription and long use.
§ 286. unless by virtue of a tacit agreement.
§ 287. The sea near the coasts may become property.
§ 288. Another reason for appropriating the sea bordering on the coasts.
§ 289. How far that possession may extend.
§ 290. Shores and ports.
§ 291. Bays and straits.
§ 292. Straits in particular.
§ 293. Right to wrecks.
§ 294. A sea inclosed within the territories of a nation.
§ 295. The parts of the sea possessed by a sovereign are within his jurisdiction.
BOOK 2: Of a Nation Considered in its Relation to Others
CHAPTER 1: Of the Common Duties of a Nation Towards Others; Or, of the Offices of Humanity Between Nations
§ 1. Foundation of the common and mutual duties of nations.
§ 2. Offices of humanity, and their foundation.
§ 3. General principle of all the mutual duties of nations.
§ 4. Duties of a nation for the preservation of others.
§ 5. She is bound to assist a nation afflicted with famine or any other calamity.
§ 6. She is bound to contribute to the perfection of other states.
§ 7. but not by force.
§ 8. The right to require the offices of humanity.
§ 9. The right of judging whether they are to be granted,.
§ 10. A nation is not to compel another to perform those offices of which the refusal is no wrong.
§ 11. Mutual love of nations.
§ 12. Each nation is bound to cultivate the friendship of others.
§ 13. to perfect herself with a view to the advantage of others, and to set them good examples.
§ 14. to take care of their glory.
§ 15. Difference of religion ought not to preclude the offices of humanity.
§ 16. Rule and measure of the offices of humanity.
§ 17. Particular limitation with respect to the prince.
§ 18. No nation ought to injure others.
§ 19. Offences.
§ 20. Bad custom of the ancients.
CHAPTER 2: Of the Mutual Commerce Between Nations
§ 21. General obligation of nations to carry on mutual commerce.
§ 22. They are bound to favour trade.
§ 23. Freedom of trade.
§ 24. Right of trading, belonging to nations.
§ 25. Each nation is sole judge of the propriety of commerce on her own part.
§ 26. Necessity of commercial treaties.
§ 27. General rule concerning those treaties.
§ 28. Duty of nations in making such treaties.
§ 29. Perpetual or temporary treaties, or treaties revocable at pleasure.
§ 30. Nothing contrary to the tenor of a treaty can be granted to a third party.
§ 31. How far lawful to give up by treaty the liberty of trading with other nations.
§ 32. A nation may restrict her commerce in favour of another nation.
§ 33. A nation may appropriate to herself a particular branch of trade.
§ 34. Consuls.
CHAPTER 3: Of the Dignity and Equality of Nations — of Titles and Other Marks of Honor
§ 35. Dignity of nations or sovereign states.
§ 36. Their equality.
§ 37. Precedency.
§ 38. The form of government is foreign to this question.
§ 39. A state ought to retain her rank, notwithstanding any changes in the form of her government.
§ 40. Treaties and established customs are to be observed in this respect.
§ 41. Name and honours given by the nation to her conductor.
§ 42. Whether a sovereign may assume what title and honours he pleases.
§ 43. Right of other nations in that respect.
§ 44. Their duty.
§ 45. How titles and honours may be secured.
§ 46.We must conform to general custom.
§ 47. Mutual respect due by sovereigns to each other.
§ 48. How a sovereign ought to maintain his dignity.
CHAPTER 4: Of The Right to Security, And The Effects of The Sovereignty And Independence of Nations
§ 49. Right to security.
§ 50. It produces the right of resistance.
§ 51. and that of obtaining reparation.
§ 52. and the right of punishing.
§ 53. Right of all nations against a mischievous people.
§ 54. No nation has a right to interfere in the government of another state.
§ 55. One sovereign cannot make himself judge of the conduct of another.
§ 56. How far lawful to interfere in a quarrel between a sovereign and his subjects.
§ 57. Right of opposing the interference of foreign powers in the affairs of government.
§ 58. The same right with respect to religion.
§ 59. No nation can be constrained in religious concerns.
§ 60. Offices of humanity in these matters:— missionaries.
§ 61. Circumspection to be used.
§ 62. What a sovereign may do in favour of those who profess his religion in another state.
CHAPTER 5: Of the Observance of Justice Between Nations
§ 63. Necessity of the observance of justice in human society.
§ 64. Obligation of all nations to cultivate and observe justice.
§ 65. Right of refusing to submit to injustice.
§ 66. This right is a perfect one.
§ 67. It produces—the right of self-defence.
§ 68. the right of doing ourselves justice.
§ 69. The right of punishing injustice.
§ 70. Right of all nations against one that openly despises justice.
CHAPTER 6: Of the Concern a Nation May Have in the Actions of Her Citizens
§ 71. The sovereign ought to revenge the injuries of the state, and to protect the citizens.
§ 72. He must not suffer his subjects to offend other nations or their citizens.
§ 73. The acts of individuals not imputable to the nation.
§ 74. unless she approve or ratify them.
§ 75. Conduct to be pursued by the offended party.
§ 76. Duty of the aggressor’s sovereign.
§ 77. If he refuses justice, he becomes a party in the fault and offence.
§ 78. Another case in which the nation is guilty of the crimes of the citizens.
CHAPTER 7: Effects of the Domain Between Nations
§ 79. General effect of the domain.
§ 80. What is comprehended in the domain of a nation.
§ 81. The property of the citizens is the national property with respect to foreign states.
§ 82. A consequence of that principle.
§ 83. Connection of the domain of the nation with the sovereignty.
§ 84. Jurisdiction.
§ 85. Effects of the jurisdiction in foreign countries.
§ 86. Desert and uncultivated places.
§ 87. Duty of the nation in that respect.
§ 88. Right of possessing things that have no owner.
§ 89. Rights granted to another nation.
§ 90. Not allowable to expel a nation from the country she inhabits.
§ 91. nor to extend by violence the bounds of empire.
§ 92. The limits of territories ought to be carefully ascertained.
§ 93. Violation of territory.
§ 94. Prohibition to enter the territory.
§ 95. A country possessed by several nations at the same time.
§ 96. A country possessed by a private person.
§ 97. Independent families in a country.
§ certain rights, in a vacant country.
CHAPTER 8: Rules with Respect to Foreigners
§ 99. General idea of the conduct the state ought to observe towards foreigners.
§ 100. Entering the territory.
§ 101. Foreigners are subject to the laws.
§ 102. and punishable according to the laws.
§ 103. Who is the judge of their disputes.
§ 104. Protection due to foreigners.
§ 105. Their duties.
§ 106. To what burthens they are subject.
§ 107. Foreigners continue members of their own nation.
§ 108. The state has no right over the person of a foreigner.
§ 109. nor over his property.
§ 110. Who are the heirs of a foreigner.
§ 111.Will of a foreigner.
§ 112. Escheatage.
§ 113. The right of traite foraine.
§ 114. Immovable property possessed by an alien.
§ 115. Marriages of aliens.
CHAPTER 9: Of the Rights Retained by All Nations after the Introduction of Domain and Property
§ 116. What are the rights of which men cannot be deprived.
§ 117. Right still remaining from the primitive state of communion.
§ 118. Right retained by each nation over the property of others.
§ 119. Right of necessity.
§ 120. Right of procuring provisions by force.
§ 121. Right of making use of things belonging to others.
§ 122. Right of carrying off women.
§ 123. Right of passage.
§ 124. and of procuring necessaries.
§ 125. Right of dwelling in a foreign country.
§ 126. Things, of which the use is inexhaustible.
§ 127. Right of innocent use.
§ 128. Nature of that right in general.
§ 129. and in cases not doubtful.
§ 130. Exercise of that right between nations.
CHAPTER 10: How a Nation Is to Use Her Right of Domain, in Order to Discharge Her Duties Towards Other Nations, with Respect to the Innocent Use of Things
§ 131. General duty of the proprietor.
§ 132. Innocent passage.
§ 133. Securities may be required.
§ 134. Passage of merchandisev135. Residence in the country.
§ 136. How we are to act towards foreigners who desire a perpetual residence.
§ 137. Right accruing from a general permission.
§ 138. A right granted as a favour.
§ 139. The nation ought to be courteous.
CHAPTER 11: Of Usucaption and Prescription Among Nations LET us conclude what relates to domain and property with an examination of a celebrated question on which the learned are much divided. It is asked whether usucaption and prescription can take place between independent nations and states.
§ 140. Definition of usucaption and prescription.
§ 140. Definition of usucaption and prescription.
§ 141. Usucaption and prescription derived from the law of nature.
§ 142. What foundation is required for ordinary prescription.
§ 143. Immemorial prescription.
§ 144. Claimant alleging reasons for his silence.
§ 145. Proprietor sufficiently shewing that he does not mean to abandon his right.
§ 146. Prescription founded on the actions of the proprietor.
§ 147. Usucaption and prescription take place between nations.
§ 148. More difficult, between nations, to found them on a presumptive desertion.
§ 149. Other principles that enforce prescription.
§ 150. Effects of the voluntary law of nations on this subject.
§ 151. Law of treaties, or custom, in this matter.
CHAPTER 12: Of Treaties of Alliance, and Other Public Treaties
§ 152. Nature of treaties.
§ 153. Compacts, agreements, or conventions.
§ 154. By whom treaties are made.
§ 155. Whether a state under protection may make treaties.
§ 156. Treaties concluded by proxies or plenipotentiaries.
§ 157. Validity of treaties.
§ 158. Injury does not render them void.
§ 159. Duty of nations in that respect.
§ 160. Nullity of treaties which are pernicious to the state.
§ 161. Nullity of treaties made for an unjust or dishonest purpose.
§ 162. Whether an alliance may be contracted with those who do not profess the true religion.
§ 163. Obligation to observe treaties.
§ 164. The violation of a treaty is an act of injustice.
§ 165. Treaties cannot be made, contrary to those already existing.
§ 166. How treaties may be concluded with several nations with the same view.
§ 167. The more ancient ally entitled to a preference.
§ 168.We owe no assistance in an unjust war.
§ 169. General division of treaties:—those that relate to things already due by the law of nature.
§ 170. Collision of those treaties with the duties we owe to ourselves.
§ 171. Treaties in which we barely promise to do no injury.
§ 172. Treaties concerning things that are not naturally due:—equal treaties.
§ 173. Obligation to preserve equality in treaties.
§ 174. Difference between equal treaties and equal alliances.
§ 175. Unequal treaties, and unequal alliances.
§ 176. An alliance with diminution of sovereignty may annul preceding treaties.
§ 177.We ought, as much as possible, to avoid making unequal alliances.
§ 178. Mutual duties of nations with respect to unequal alliances.
§ 179. in alliances where the inequality is on the side of the more powerful party.
§ 180. How inequality of treaties and alliances may be conformable to the law of nature.
§ 181. Inequality imposed by way of punishment.
§ 182. Other kinds, of which we have spoken elsewhere.
§ 183. Personal and real treaties.
§ 184. Naming the contracting parties in the treaty does not render it personal.
§ 185. An alliance made by a republic is real.
§ 186. Treaties concluded by kings or other monarchs.
§ 187. Perpetual treaties, and those for a certain time.
§ 188. Treaties made for the king and his successors.
§ 189. Treaties made for the good of the kingdom.
§ 190. How presumption ought to be founded in doubtful cases.
§ 191. The obligations and rights resulting from a real treaty pass to the successors.
§ 192. Treaties accomplished once for all, and perfected.
§ 193. Treaties already accomplished on the one part.
§ 194. The personal alliance expires if one of the parties ceases to reign.
§ 195. Treaties in their own nature personal.
§ 196. Alliance concluded for the defence of the king and royal family.
§ 197. Obligation of a real alliance, when the allied king is deposed.
CHAPTER 13: Of the Dissolution and Renewal of Treaties1
§ 198. Expiration of alliances made for a limited time.
§ 199. Renewal of treaties.
§ 200. How a treaty is dissolved, when violated by one of the contracting parties.
§ 201. The violation of one treaty does not cancel another.
§ 202. The violation of one article in a treaty may cancel the whole.
§ 203. The treaty is void by the destruction of one of the contracting powers.
§ 204. Alliances of a state that has afterwards put herself under the protection of another.
§ 205. Treaties dissolved by mutual consent.
CHAPTER 14: Of Other Public Conventions, — of Those That Are Made by Subordinate Powers, — Particularly of the Agreement Called in Latin Sponsio, — and of Conventions of Sovereigns with Private Persons
§ 206. Conventions made by sovereigns..
§ 207. Those made by subordinate powers.
§ 208. Treaties concluded by a public person, without orders from the sovereign, or without sufficient powers.
§ 209. The agreement called sponsio.
§ 210. The state is not bound by such an agreement.
§ 211. To what the promiser is bound when it is disavowed.
§ 212. To what the sovereign is bound.
§ 213. Private contracts of the sovereign.
§ 214. Contracts made by him with private persons, in the name of the state.
§ 215. They are binding on the nation, and on his successors.
§ 216. Debts of the sovereign and the state.
§ 217. Donations of the sovereign, 228.
CHAPTER 15: Of the Faith of Treaties
§ 218. What is sacred among nations.
§ 219. Treaties sacred between nations.
§ 220. The faith of treaties is sacred.
§ 221. He who violates his treaties, violates the law of nations.
§ 222. Right of nations against him who disregards the faith of treaties.
§ 223. The law of nations violated by the popes.
§ 224. This abuse authorised by princes.
§ 225. Use of an oath in treaties.—It does not constitute the obligation.
§ 226. It does not change the nature of obligations.
§ 227. It gives no pre-eminence to one treaty above another.
§ 228. It cannot give force to a treaty that is invalid.
§ 229. Asseverations.
§ 230. The faith of treaties does not depend on the difference of religion.
§ 231. Precaution to be taken in wording treaties.
§ 232. Subterfuges in treaties.
§ 233. An evidently false interpretation inconsistent with the faith of treaties.
§ 234. Faith tacitly pledged.
CHAPTER 16: Of Securities Given for the Observance of Treaties
§ 235. Guaranty.
§ 236. It gives the guarantee no right to interfere unasked in the execution of a treaty.
§ 237. Nature of the obligation it imposes.
§ 238. The guaranty cannot impair the rights of a third party.
§ 239. Duration of the guaranty.
§ 240. Treaties with surety.
§ 241. Pawns, securities, and mortgages.
§ 242. A nation’s right over what she holds as a pledge.
§ 243. How she is obliged to restore it.
§ 244. How she may appropriate it to herself.
§ 245. Hostages.
§ 246. What right we have over hostages.
§ 247. Their liberty alone is pledged.
§ 248. When they are to be sent back.
§ 249. Whether they may be detained on any other account.
§ 250. They may be detained for their own actions.
§ 251. Of the support of hostages.
§ 252. A subject cannot refuse to be a hostage.
§ 253. Rank of the hostages.
§ 254. They ought not to make their escape.
§ 255. Whether a hostage who dies is to be replaced.
§ 256. Substitute for a hostage.
§ 257. Hostage succeeding to the crownv258. The liability of the hostage ends with the treaty.
§ 259. The violation of the treaty is an injury done to the hostages.
§ 260. The fate of the hostage when he who has given him fails in his engagements.
§ 261. Right founded on custom.
CHAPTER 17: Of the Interpretation of Treaties
§ 262. Necessity of establishing rules of interpretation.
§ 263. First general maxim—it is not allowable to interpret what has no need of interpretation.
§ 264. Second general maxim—if he who could and ought to have explained himself, has not done it, it is to his own detriment.
§ 265. Third general maxim—neither of the contracting parties has a right to interpret the treaty according to his own fancy.
§ 266. Fourth general maxim—what is sufficiently declared, is to be taken for true.
§ 267.We ought to attend rather to the words of the person promising, than to those of the party stipulating.
§ 268. Fifth general maxim—the interpretation ought to be made according to certain rules.
§ 269. The faith of treaties imposes an obligation to follow those rules.
§ 270. General rule of interpretation.
§ 271. The terms are to be explained conformably to common usage.
§ 272. Interpretation of ancient treaties.
§ 273. Quibbles on words.
§ 274. A rule on that subject.
§ 275. Mental reservations.
§ 276. Interpretation of technical terms.
§ 277. Terms whose signification admits of degrees.
§ 278. Figurative expressions.
§ 279. Equivocal expressions.
§ 280. The rule for these two cases.
§ 281. Not necessary to give a term the same sense every-where in the same deed.
§ 282.We ought to reject every interpretation which leads to an absurdity.
§ 283. or which renders the act null and void of effect.
§ 284. Obscure expressions interpreted by others more clear in the same author.
§ 285. Interpretation founded on the connection of the discourse.
§ 286. Interpretation drawn from the connection and relation of the things themselves.
§ 287. Interpretation founded on the reason of the deed.
§ 288. Where many reasons have concurred to determine the will.
§ 289. What constitutes a sufficient reason for an act of the will.
§ 290. Extensive interpretation founded on the reason of the act.
§ 291. Frauds tending to elude laws or promises.
§ 292. Restrictive interpretation.
§ 293. Its use, in order to avoid falling into absurdities, or into what is unlawful.
§ 294. or what is too severe and burthensome.
§ 295. How it ought to restrict the signification agreeably to the subject.
§ 296. How a change happening in the state of things may form an exception.
§ 297. Interpretation of a deed in unforeseen cases.
§ 298. Reasons arising from the possibility and not the existence of a thing.
§ 299. Expressions susceptible of an extensive and a limited sense.
§ 300. Things favourable, and things odious.
§ 301. What tends to the common advantage, and to equality, is favourable: the contrary is odious.
§ 302. What is useful to human society, is favourable: the contrary is odious.
§ 303. Whatever contains a penalty, is odious.
§ 304. Whatever renders a deed void, is odious.
§ 305. Whatever tends to change the present state of things, is odious: the contrary is favourable.
§ 306. Things of a mixed nature.
§ 307. Interpretation of favourable things.
§ 308. Interpretation of odious things.
§ 309. Examples.
§ 310. How we ought to interpret deeds of pure liberality.
§ 311. Collision of laws or treaties.
§ 312. First rule in cases of collision.
§ 313. Second rule.
§ 314. Third rule.
§ 315. Fourth rule.
§ 316. Fifth rule.
§ 317. Sixth rule.
§ 318. Seventh rule.
§ 319. Eighth rule.
§ 320. Ninth rule.
§ 321. Tenth rule.
§ 322. General remark on the manner of observing all the preceding rules.
CHAPTER 18: Of The Mode of Terminating Disputes Between Nations
§ 323. General direction on this subject. 324. Every nation is bound to give satisfaction respecting the just complaints of another.
§ 325. How nations may abandon their rights and just complaints.
§ 326. Means suggested by the law of nature, for terminating their disputes:—amicable accommodation,.
§ 327. Compromise.
§ 328. Mediation.
§ 329. Arbitration.
§ 330. Conferences and congresses.
§ 331. Distinction to be made between evident and doubtful cases.
§ 332. Essential rights, and those of less importance.
§ 333. How we acquire a right of recurring to force in a doubtful case.
§ 334. and even without attempting other measures.
§ 335. Voluntary law of nations on that subject.
§ 336. Equitable conditions to be offered.
§ 337. Possessor’s right in doubtful cases.
§ 338. How reparation of an injury is to be sought.
§ 339. Retaliation.
§ 340. Various modes of punishing, without having recourse to arms.
§ 341. Retortion.
§ 342. Reprisals.
§ 343. What is required to render them lawful.
§ 344. Upon what effects reprisals are made.
§ 345. The state is bound to compensate those who suffer by reprisals.
§ 346. The sovereign alone can order reprisals.
§ 347. Reprisals against a nation for actions of her subjects, and in favour of the injured subjects.
§ 348. but not in favour of foreigners.
§ 349. Those who have given cause for reprisals are bound to indemnify those who suffer by them.
§ 350. What may be deemed a refusal to do justice.
§ 351. Subjects arrested by way of reprisals.
§ 352. Our right against those who oppose reprisals.
§ 353. Just reprisals do not afford a just cause for war.
§ 354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities.
BOOK 3: Of War
CHAPTER 1: Of War, — Its Different Kinds — and the Right of Making War
§ 1. Definition of war.
§ 2. Public war.
§ 3. Right of making war.
§ 4. It belongs only to the sovereign power.
§ 5. Defensive and offensive war.
CHAPTER 2: Of the Instruments of War, — the Raising of Troops, Etc., — Their Commanders, or the Subordinate Powers in War
§ 6. Instruments of war.
§ 7. Right of levying troops.
§ 8. Obligation of the citizens or subjects.
§ 9. Enlisting or raising of troops.
§ 10. Whether there be any exemptions from carrying arms.
§ 11. Soldiers’ pay and quarters.
§ 12. Hospitals for invalids.
§ 13. Mercenary soldiers.
§ 14. Rule to be observed in their enlistment.
§ 15. Enlisting in foreign countries.
§ 16. Obligation of soldiers.
§ 17. Military laws.
§ 18. Military discipline.
§ 19. Subordinate powers in war.
§ 20. How their promises bind the sovereign.
§ 21. In what cases their promises bind only themselves.
§ 22. Their assumption of an authority which they do not possess.
§ 23. How they bind their inferiors.
CHAPTER 3: Of the Just Causes of War
§ 24. War never to be undertaken without very cogent reasons..
§ 25. Justificatory reasons, and motives for making war.
§ 26. What is in general a just cause of war.
§ 27. What war is unjust.
§ 28. The object of war.
§ 29. Both justificatory reasons and proper motives requisite in undertaking a war.
§ 30. Proper motives—vicious motives.
§ 31.War undertaken upon just grounds, but from vicious motives.
§ 32. Pretexts.
§ 33.War undertaken merely for advantage.
§ 34. Nations who make war without reason or apparent motives.
§ 35. How defensive war is just or unjust.
§ 36. How it may become just against an offensive war which was originally just.
§ 37. How an offensive war is just in an evident cause.
§ 38. in a doubtful cause.
§ 39. War cannot be just on both sides.
§ 40. Sometimes reputed lawful.
§ 41.War undertaken to punish a nation.
§ 42. Whether the aggrandisement of a neighbouring power can authorise a war against him.
§ 43. Alone, and of itself, it cannot give a right to attack him.
§ 44. How the appearances of danger give that right.
§ 45. Another case more evident.
§ 46. Other allowable means of defence against a formidable power.
§ 47. Political equilibrium.
§ 48. Ways of maintaining it.
§ 49. How he that destroys the equilibrium, may be restrained, or even weakened.
§ 50. Behaviour allowable towards a neighbour preparing for war.
CHAPTER 4: Of the Declaration of War — and of War in Due Form
§ 51. Declaration of war.
§ 52. What it is to contain.
§ 53. It is simple or conditional.
§ 54. The right to make war ceases on the offer of equitable conditions.
§ 55. Formalities of a declaration of war.
§ 56. Other reasons for the necessity of its publication.
§ 57. Defensive war requires no declaration.
§ 58. When it may be omitted in an offensive war.
§ 59. It is not to be omitted by way of retaliation.
§ 60. Time of the declaration.
§ 61. Duty of the inhabitants on a foreign army’s entering a country before a declaration of war.
§ 62. Commencement of hostilities.
§ 63. Conduct to be observed towards the enemy’s subjects who are in the country at the time of the declaration of war.
§ 64. Publication of the war, and manifestoes.
§ 65. Decorum and moderation to be observed in the manifestoes.
§ 66. What is a lawful war in due form.
§ 67. It is to be distinguished from informal and unlawful war.
§ 68. Grounds of this distinction.
CHAPTER 5: Of the Enemy, and of Things Belonging to the Enemy
§ 69. Who is an enemy.
§ 70. All the subjects of the two states at war are enemies.
§ 71. and continue to be enemies in all places.
§ 72. Whether women and children are to be accounted enemies.
§ 73. Things belonging to the enemy.
§ 74. continue such every-where.
§ 75. Neutral things found with an enemy.
§ 76. Lands possessed by foreigners in an enemy’s country.
§ 77. Things due to the enemy by a third party.
CHAPTER 6: Of the Enemy's Allies — of Warlike Associations — of Auxiliaries and Subsidies
§ 78. Treaties relative to war.
§ 79. Defensive and offensive alliances.
§ 80. Difference between warlike alliances and defensive treaties.
§ 81. Auxiliary troops.
§ 82. Subsidies.
§ 83. When a nation is authorised to assist another.
§ 84. and to make alliances for war.
§ 85. Alliances made with a nation actually engaged in war.
§ 86. Tacit clause in every warlike alliance.
§ 87. To refuse succours for an unjust war, is no breach of alliance.
§ 88. What the casus foederis is.
§ 89. It never takes place in an unjust war.
§ 90. How it exists in a defensive war.
§ 91. and in a treaty of a guaranty.
§ 92. The succour is not due under an inability to furnish it, or when the public safety would be exposed.
§ 93. Other cases:—two of the parties in an alliance coming to a rupture.
§ 94. Refusal of the succours due in virtue of an alliance.
§ 95. The enemy’s associates.
§ 96. Those who make a common cause with the enemy are his associates.
§ 97. and those who assist him, without being obliged to it by treaties.
§ 98. or who are in an offensive alliance with him.
§ 99. How a defensive alliance associates with the enemy.
§ 100. Another case.
§ 101. In what case it does not produce the same effect.
§ 102. Whether it be necessary to declare war against the enemy’s associates.
CHAPTER 7: Of Neutrality — and the Passage of Troops Through a Neutral Country
§ 103. Neutral nations.
§ 104. Conduct to be pursued by a neutral nation.
§ 105. An ally may furnish the succour due from him, and remain neuter.
§ 106. Right of remaining neuter.
§ 107. Treaties of neutrality.
§ 108. Additional reason for making those treaties.
§ 109. Foundation of the rules of neutrality.
§ 110. How levies may be allowed, money lent, and every kind of things sold, without a breach of neutrality.
§ 111. Trade of neutral nations with those which are at war.
§ 112. Contraband goods.
§ 113. Whether such goods may be confiscated.
§ 114. Searching neutral ships.
§ 115. Enemy’s property on board a neutral ship.
§ 116. Neutral property on board an enemy’s ship.
§ 117. Trade with a besieged town.
§ 118. Impartial offices of neutrals.
§ 119. Passage of troops through a neutral country.
§ 120. Passage to be asked.
§ 121. It may be refused for good reasons.
§ 122. In what case it may be forced.
§ 123. The fear of danger authorises a refusal.
§ 124. or a demand of every reasonable security.
§ 125. Whether always necessary to give every kind of security required.
§ 126. Equality to be observed towards both parties, as to the passage.
§ 127. No complaint lies against a neutral state for granting a passage.
§ 128. That state may refuse it from fear of the resentment of the opposite party.
§ 129. and lest her country should become the theatre of war.
§ 130. What is included in the grant of passage.
§ 131. Safety of the passage.
§ 132. No hostility to be committed in a neutral country.
§ 133. Neutral country not to afford a retreat to troops, that they may again attack their enemies.
§ 134. Conduct to be pursued by troops passing through a neutral country.
§ 135. A passage may be refused for a war evidently unjust.
CHAPTER 8: Of the Rights of Nations in War, — And, First, of What We Have a Right to Do, and What We Are Allowed to Do to the Enemy's Person, in a Just War
§ 136. General principles of the rights against an enemy in a just war.
§ 137. Difference between what we have a right to do, and what is barely allowed to be done with impunity between enemies.
§ 138. The right to weaken an enemy by every justifiable method.
§ 139. The right over the enemy’s person.
§ 140. Limits of that right:—an enemy not to be killed after ceasing to resist.
§ 141. A particular case, in which quarter may be refused.
§ 142. Reprisals.
§ 143. Whether a governor of a town can be punished with death for an obstinate defence.
§ 144. Fugitives and deserters.
§ 145.Women, children, the aged, and sick.
§ 146. Clergy, men of letters.
§ 147. Peasants, and, in general, all who do not carry arms.
§ 148. The right of making prisoners of war.
§ 149. A prisoner of war not to be put to death.
§ 150. How prisoners of war are to be treated.
§ 151. Whether prisoners, who cannot be kept or fed, may be put to death.
§ 152. Whether prisoners of war may be made slaves.
§ 153. Exchange and ransom of prisoners.
§ 154. The state is bound to procure their release.
§ 155. Whether an enemy may lawfully be assassinated or poisoned.
§ 156. Whether poisoned weapons may be used in war.
§ 157. Whether springs may be poisoned.
§ 158. Disposition to be entertained towards an enemy.
§ 159. Tenderness for the person of a king who is in arms against us.
CHAPTER 9: Of the Right of War, with Regard to Things Belonging to the Enemy
§ 160. Principles of the right over things belonging to the enemy.
§ 161. The right of seizing them.
§ 162. What is taken from the enemy by way of penalty.
§ 163. What is with-held from him, in order to oblige him to give just satisfaction.
§ 164. Booty.
§ 165. Contributions.
§ 166.Waste and destruction.
§ 167. Ravaging and burning.
§ 168. What things are to be spared.
§ 169. Bombarding towns.
§ 170. Demolition of fortresses.
§ 171. Safeguards.
§ 172. General rule of moderation, respecting the evil which may be done to an enemy.
§ 173. Rule of the voluntary law of nations on the same subject.
CHAPTER 10: Of Faith Between Enemies, — of Stratagems, Artifices in War, Spies, and Some Other Practices
§ 174. Faith to be sacred between enemies. 175. What treaties are to be observed between enemies.
§ 176. On what occasions they may be broken.
§ 177. Lies.
§ 178. Stratagems and artifices in war.
§ 179. Spies.
§ 180. Clandestine seduction of the enemy’s people.
§ 181. Whether the offers of a traitor may be accepted.
§ 182. Deceitful intelligence.
CHAPTER 11: Of the Sovereign Who Wages an Unjust War
§ 183. An unjust war gives no right whatever.
§ 184. Great guilt of the sovereign who undertakes it.
§ 185. His obligations.
§ 186. Difficulty of repairing the injury he has done.
§ 187. Whether the nation and the military are bound to any thing.
CHAPTER 12: Of the Voluntary Law of Nations, as it Regards the Effects of Regular Warfare, Independently of the Justice of the Cause
§ 188. Nations not rigidly to enforce the law of nature against each other.
§ 189. Why they are bound to admit the voluntary law of nations.
§ 190. Regular war, as to its effects, is to be accounted just on both sides.
§ 191. Whatever is permitted to one party, is so to the other.
§ 192. The voluntary law gives no more than impunity to him who wages an unjust war.
CHAPTER 13: Of Acquisitions by War, and Particularly of Conquests
§ 193. How war is a method of acquisition.
§ 194. Measure of the right it gives.
§ 195. Rules of the voluntary law of nations.
§ 196. Acquisition of movable property.
§ 197. Acquisition of immovables,—or conquest.
§ 198. How to transfer them validly.
§ 199. Conditions on which a conquered town is acquired.
§ 200. Lands of private persons.
§ 201. Conquest of the whole state.
§ 202. To whom the conquest belongs.
§ 203. Whether we are to set at liberty a people whom the enemy had unjustly conquered.
CHAPTER 14: Of the Right of Postliminium
§ 204. Definition of the right of postliminium 205. Foundation of that right.
§ 206. How it takes effect.
§ 207. Whether it takes effect among the allies.
§ 208. Of no validity in neutral nations.
§ 209. What things are recoverable by that right.
§ 210. Of those who cannot return by the right of postliminium.
§ 211. They enjoy that right when retaken.
§ 212. Whether that right extends to their property alienated by the enemy.
§ 213. Whether a nation that has been entirely subdued can enjoy the right of postliminium.
§ 214. Right of postliminium for what is restored at the peace.
§ 215. and for things ceded to the enemy.
§ 216. The right of postliminium does not exist after a peace.
§ 217. Why always in force for prisoners.
§ 218. They are free even by escaping into a neutral country.
§ 219. How the rights and obligations of prisoners subsist.
§ 220. Testament of a prisoner of war.
§ 221. Marriage.
§ 222. Regulations established by treaty or custom, respecting postliminium.
CHAPTER 15: Of the Right of Private Persons in War
§ 223. Subjects cannot commit hostilities without the sovereign's order.
(K. Notes: In these united States of America, our government is subject to the will of the governed people; in accord with The Declaration and The Constitution. The body of the people is not subject to the will of the government.
§ 224. That order may be general or particular.
§ 225. Source of the necessity of such an order.
§ 226. Why the law of nations should have adopted this rule.
§ 227. Precise meaning of the order.
§ 228. What may be undertaken by private persons, presuming on the sovereign’s will.
§ 229. Privateers.
§ 230. Volunteers.
§ 231. What soldiers and subalterns may do.
§ 232. Whether the state is bound to indemnify the subjects for damages sustained in war.
CHAPTER 16: Of Various Conventions Made During the Course of the War
§ 233. Truce and suspension of arms.
§ 234. does not terminate the war.
§ 235. A truce is either partial or general.
§ 236. General truce for many years.
§ 237. By whom those agreements may be concluded.
§ 238. The sovereign’s faith engaged in them.
§ 239. When the truce begins to be obligatory.
§ 240. Publication of the truce.
§ 241. Subjects contravening the truce.
§ 242. Violation of the truce.
§ 243. Stipulation of a penalty against the infractor.
§ 244. Time of the truce.
§ 245. Effects of a truce:—what is allowed, or not, during its continuance.—First rule—Each party may do at home what they have a right to do in time of peace.
§ 246. Second rule—Not to take advantage of the truce in doing what hostilities would have prevented.
§ 247. for instance, continuing the works of a siege, or repairing breaches.
§ 248. or introducing succours.
§ 249. Distinction of a particular case.
§ 250. Retreat of an army during a suspension of hostilities.
§ 251. Third rule—Nothing to be attempted in contested places, but every thing to be left as it was.
§ 252. Places quitted or neglected by the enemy.
§ 253. Subjects inclined to revolt against their prince not to be received during the truce.
§ 254. much less to be solicited to treason.
§ 255. Persons or effects of enemies not to be seized during the truce.
§ 256. Right of postliminium during the truce.
§ 257. Intercourse allowed during a truce.
§ 258. Persons detained by unsurmountable obstacles after the expiration of the truce.
§ 259. Particular conditions added to truces.
§ 260. At the expiration of the truce, the war recommences without any new declaration.
§ 261. Capitulations; and by whom they may be concluded.
§ 262. Clauses contained in them.
§ 263. Observance of capitulations, and its utility.
§ 264. Promises made to the enemy by individuals.
CHAPTER 17: Of Safe-conducts and Passports, — With Questions on the Ransom of Prisoners of War
§ 265. Nature of safe-conducts and passports.
§ 266. From what authority they emanate.
§ 267. Not transferable from one person to another.
§ 268. Extent of the promised security.
§ 269. How to judge of the right derived from a safe-conduct.
§ 270. Whether it includes baggage and domestics.
§ 271. Safe-conduct granted to the father does not include his family.
§ 272. Safe-conduct given in general to any one and his retinue.
§ 273. Term of the safe-conduct.
§ 274. A person unavoidably detained beyond the term.
§ 275. The safe-conduct does not expire at the death of him who gave it.
§ 276. How it may be revoked.
§ 277. Safe-conduct, with the clause, “for such time as we shall “think fit.
§ 278. Conventions relating to the ransom of prisoners.
§ 279. The right of demanding a ransom may be transferred.
§ 280. What may annul the convention made for the rate of the ransom.
§ 281. A prisoner dying before payment of ransom.
§ 282. Prisoner released on condition of procuring the release of another.
§ 283. Prisoner retaken before he has paid his former ransom.
§ 284. Prisoner rescued before he has received his liberty.
§ 285. Whether the things which a prisoner has found means to conceal, belong to him.
§ 286. Hostage given for the release of a prisoner.
CHAPTER 18: Of Civil War
§ 287 Foundation of the sovereign's rights against the rebels.
§ 288. Who are rebels.
§ 289. Popular commotion, insurrection, sedition.
§ 290. How the sovereign is to suppress them.
§ 291. He is bound to perform the promises he has made to the rebels.
§ 292. Civil war.
§ 293. A civil war produces two independent parties.
§ 294. They are to observe the common laws of war.
§ 295. The effects of civil war distinguished according to cases.
§ 296. Conduct to be pursued by foreign nations.
BOOK 4: Of the Restoration of Peace; and of Embassies
CHAPTER 1: Of Peace, and the Obligation to Cultivate it
§ l. What peace is.
§ 2. Obligation of cultivating it.
§ 3. The sovereign’s obligation in that respect.
§ 4. Extent of that duty.
§ 5. Disturbers of the public peace.
§ 6. How far war may be continued.
§ 7. Peace the end of war.
§ 8. General effects of peace.
CHAPTER 2: Treaties of Peace
§ 9. Definition of a treaty of peace.
§ 10. By whom it may be concluded.
§ 11. Alienations made by a treaty of peace.
§ 12. How the sovereign may, in a treaty, dispose of what concerns individuals.
§ 13. Whether a king who is a prisoner of war, can make a peace.
§ 14. Whether peace can be made with a usurper.
§ 15. Allies included in the treaty of peace.
§ 16. Associates to treat, each for himself.
§ 17. Mediation.
§ 18. On what footing peace may be concluded.
§ 19. General effect of the treaty of peace.
§ 20. Amnesty.
§ 21. Things not mentioned in the treaty.
§ 22. Things not included in the compromise or amnesty.
§ 23. Former treaties, mentioned or confirmed in the new, are a part of it.
CHAPTER 3: Of the Execution of the Treaty of Peace
§ 24. When the obligation of the treaty commences.
§ 25. Publication of the peace.
§ 26. Time of the execution.
§ 27. A lawful excuse to be admitted.
§ 28. The promise is void when the party to whom it was made has himself hindered the performance of it.
§ 29. Cessation of contributions.
§ 30. Products of the thing restored or ceded.
§ 31. In what condition things are to be restored.
§ 32. The interpretation of a treaty of peace is to be against the superior party.
§ 33. Names of ceded countries.
§ 34. Restoration not to be understood of those who have voluntarily given themselves up.
CHAPTER 4: Of the Observance and Breach of the Treaty of Peace
§ 35. The treaty of peace binds the nation and successors.
§ 36. It is to be faithfully observed.
§ 37. The plea of fear or force does not dispense with the observance.
§ 38. How many ways a treaty of peace may be broken.
§ 39. by a conduct contrary to the nature of every treaty of peace.
§ 40. To take up arms for a fresh cause is no breach of the treaty of peace.
§ 41. A subsequent alliance with an enemy is likewise no breach of the treaty.
§ 42. Why a distinction is to be made between a new war and a breach of the treaty.
§ 43. Justifiable self-defence is no breach of the treaty.
§ 44. Causes of rupture on account of allies.
§ 45. The treaty is broken by what is contrary to its particular nature.
§ 46. by the violation of any article.
§ 47. The violation of a single article breaks the whole treaty.
§ 48. Whether a distinction may here be made between the more and the less important articles.
§ 49. Penalty annexed to the violation of an article.
§ 50. Studied delays.
§ 51. Unsurmountable impediments.
§ 52. Infractions of the treaty of peace by the subjects.
§ 53. or by allies.
§ 54. Right of the offended party against him who has violated the treaty.
CHAPTER 5: Of the Right of Embassy, or the Right of Sending and Receiving Public Ministers
§ 55. It is necessary that nations be enabled to treat and communicate together.
§ 56. They do that by the agency of public ministers.
§ 57. Every sovereign state has a right to send and receive public ministers.
§ 58. An unequal alliance, or a treaty of protection, does not take away that right.
§ 59. Right of the princes and states of the empire in that respect.
§ 60. Cities that have the right of banner
§ 61. Ministers of viceroys
§ 62. Ministers of the nation or of the regents during an interregnum.
§ 63. Sovereign molesting another in the exercise of the right of embassy.
§ 64. What is allowable in that respect in time of war
§ 65. The minister of a friendly power is to be received
§ 66. Resident ministers.
§ 67. Admission of an enemy’s ministers.
§ 68. Whether ministers may be received from or sent to a usurper.
CHAPTER 6: Of the Several Orders of Public Ministers — Of the Representative Character — and of the Honor Due to Ministers
§ 69. Origin of the several orders of public ministers.
§ 70. Representative character.
§ 71. Embassadors.
§ 72. Envoys.
§ 73. Residents.
§ 74. Ministers.
§ 75. Consuls, agents, deputies, commissioners
§ 76. Credentials.
§ 77. Instructions.
§ 78. Right of sending embassadors.
§ 79. Honours due to embassadors.
CHAPTER 7: Of the Rights, Privileges, and Immunities of Ambassadors and Other Public Ministers
§ 80. Respect due to public ministers.
§ 81. Their persons sacred and inviolable.
§ 82. Particular protection due to them.
§ 83. When it commences.
§ 84. What is due to them in the countries through which they pass.
§ 85. Embassadors going to an enemy’s country.
§ 86. Embassies between enemies.
§ 87. Heralds, trumpeters, and drummers.
§ 88. Ministers, trumpeters, &c. to be respected even in a civil war.
§ 89. Sometimes they may be refused admittance.
§ 89. Sometimes they may be refused admittance.
§ 90. Every thing which has the appearance of insult to them, must be avoided.
§ 89. Sometimes they may be refused admittance.
§ 91. By and to whom they may be sent.
§ 89. Sometimes they may be refused admittance.
§ 92. Independence of foreign ministers.
§ 89. Sometimes they may be refused admittance.
§ 93. How the foreign minister is to behave.
§ 89. Sometimes they may be refused admittance.
§ 94. How he may be punished for ordinary
§ 89. Sometimes they may be refused admittance.
§ 95. for faults committed against the prince.
§ 89. Sometimes they may be refused admittance.
§ 96. Right of ordering away an embassador who is guilty, or justly suspected.
§ 89. Sometimes they may be refused admittance.
§ 97. Right of repressing him by force, if he behaves as an enemy.
§ 89. Sometimes they may be refused admittance.
§ 98. Embassador forming dangerous plots
§ 89. Sometimes they may be refused admittance.
§ 99. What may be done to him according to the exigency of the case.
§ 89. Sometimes they may be refused admittance.
§ 100. Embassador attempting against the sovereign’s life.
§ 89. Sometimes they may be refused admittance.
§ 101. Two remarkable instances respecting the immunities of public ministers.
§ 89. Sometimes they may be refused admittance.
§ 102. Whether reprisals may be made on an embassador.
§ 89. Sometimes they may be refused admittance.
§ 103. Agreement of nations concerning the privileges of embassadors.
§ 89. Sometimes they may be refused admittance.
§ 104. Free exercise of religion.
§ 105. Whether an embassador be exempted from all imposts.
§ 106. Obligation founded on use and custom.
§ 107. A minister whose character is not public.
§ 108. A sovereign in a foreign country.
§ 109. Deputies to the states.
CHAPTER 8: Of the Judge of Ambassadors in Civil Cases
§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides.
§ 111. How he may voluntarily subject himself to it.
§ 112. A minister who is a subject of the state where he is employed.
§ 113. Immunity of the minister extends to his property.
§ 114. The exemption cannot extend to effects belonging to any trade the minister may carry on.
§ 115. nor to immovable property which he possesses in the country.
§ 116. How justice may be obtained against an embassador.
CHAPTER 9: Of the Ambassador's House and Domestics
§ 117. The ambassador's house.
§ 118. Right of asylum.
§ 119. Exemption of an embassador’s carriages.
§ 120. of his retinue.
§ 121. of his wife and family.
§ 122. of the secretary of the embassy.
§ 123. of the embassador’s couriers and dispatches.
§ 124. The embassador’s authority over his retinue.
§ 125. When the rights of an embassador expire,
§ 126. Cases when new credentials are necessary.
§ 127. Conclusion.