The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of the Mutual Commerce Between Nations
§ 21. General obligation of nations to carry on mutual commerce.
ALL men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right; and, consequently it cannot take place without leaving them, in general, some mean of procuring what is useful or necessary to them. This mean is commerce; by it every man may still supply his wants. Things being now become property, there is no obtaining them without the owner’s consent, nor are they usually to be had for nothing; but they may be bought, or exchanged for other things of equal value. Men are, therefore, under an obligation to carry on that commerce with each other, if they wish not to deviate from the views of nature, and this obligation extends also to whole nations or states (Prelim. § 5). It is seldom that nature is seen in one place to produce every thing necessary for the use of man; one country abounds in corn, another in pastures and cattle, a third in timber and metals, etc. If all those countries trade together, as is agreeable to human nature, no one of them will be without such things as are useful and necessary; and the views of nature, our common mother, will be fulfilled. Further, one country is fitter for some kind of products than another, as, for instance, fitter for the vine than for tillage. If trade and barter take place, every nation, on the certainly of procuring what it wants, will employ its land and its industry in the most advantageous manner, and mankind in general prove gainers by it. Such are the foundations of the general obligation incumbent on nations reciprocally to cultivate commerce.1
§ 22. They should favor trade.
Every nation ought, therefore, not only to countenance trade, as far as it reasonably can, but even to protect and favor it. The care of the public roads, the safety of travelers, the establishment of ports, of places of sale, of well-regulated fairs, all contribute to this end. And, where these are attended with expense, the nation, as we have already observed (Book I, § 103), may, by tolls and other duties equitably proportioned, indemnify itself for its disbursements.
§ 23. Freedom of trade.
Freedom being very favorable to commerce, it is implied, in the duties of nations, that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions. Wherefore, those private privileges and tolls, which obtain in many places, and press so heavily on commerce, are deservedly to be reprobated, unless founded on very important reasons arising from the public good.
§ 24. Right of trading belonging to nations.
Every nation, in virtue of her natural liberty, has a right to trade with those who are willing to correspond with such intentions; and to molest her in the exercise of her right is doing her an injury.4 The Portuguese, at the time of their great power in the East Indies, were for excluding all other European nations from any commerce with the Indians; but such a pretension, no less iniquitous than chimerical, was treated with contempt; and the other nations agreed to consider any acts of violence in support of it, as just grounds for making war against the Portuguese. This common right of all nations is, at present, generally acknowledged under the appellation of freedom of trade.
§ 25. Each nation is sole judge of the propriety of commerce on her own part.5
But, although it be in general the duty of a nation to carry on commerce with others, and, though each nation has a right to trade with those countries that are willing to encourage her on the other hand, a nation ought to decline a commerce which is disadvantageous or dangerous (Book 1, § 98); and since, in case of collision, her duties to herself are paramount to her duties to others, she has a full and clear right to regulate her conduct, in this respect, by the consideration of what her advantage or safety requires. We have already seen (Book I. § 92), that each nation is, on her own part, the sole judge whether or not it be convenient for her to cultivate such or such branch of commerce. She may, therefore, either embrace or reject any commercial proposals from foreign nations, without affording them any just grounds to accuse her of injustice, or to demand a reason for such refusal, much less to make use of compulsion. She is free in the administration of her affairs, without being accountable to any other. The obligation of trading with other nations is in itself an imperfect obligation (Prelim. § 17), and gives them only an imperfect right; so that, in cases where the commerce would be detrimental, that obligation is entirely void. When the Spaniards attacked the Americans, under a pretense that those people refused to traffic with them, they only endeavored to throw a colorable veil over their own insatiable avarice.
§ 26. Necessity of commercial treaties.6
These few remarks, together with what we have already said on the subject (Book I. Chap. VIII.), may suffice to establish the principles of the natural law of nations respecting the mutual commerce of states. It is not difficult to point out, in general, what are the duties of nations in this respect, and what the law of nature prescribes to them for the good of the great society of mankind. But, as each nation is only so far obliged to carry on commerce with others as she can do it without being wanting to herself, and as the whole ultimately depends on the judgment that each state may form of what it can and ought to do in particular cases, nations cannot count on any thing more than generalities, such as, the inherent liberty of each to carry on trade, and, moreover, on imperfect rights, which depend on the judgment of others, and, consequently, are ever uncertain. Wherefore, if they wish to secure to themselves any definite and constant advantages, they must procure them by treaties.
§ 27. General rule concerning those treaties.
Since a nation has a full right to regulate herself in commercial affairs by what is useful or advantageous to her, she may make such commercial treaties as she thinks proper; and no other nation has a right to take offence, provided those treaties do not affect the perfect rights of others. If, by the engagements contracted, a nation, unnecessarily, or without powerful reasons, renders herself incapable of joining in the general trade which nature recommends between nations, she trespasses against her duty. But, the nation being the sole judge in this case (Prelim. § 16), other nations are bound to respect her natural liberty to acquiesce in her determination, and even to suppose that she is actuated by substantial reasons. Every commercial treaty, therefore, which does not impair the perfect right of others, is allowable between nations; nor can the execution of it be lawfully opposed. But those commercial treaties alone are in themselves just and commendable, which pay to the general interest of mankind as great a degree of respect as is possible and reasonable in the particular case.
§ 28. Duty of nations in making those treaties.
As express promises and engagements should be inviolable, every wise and virtuous nation will be attentive to examine and weigh a commercial treaty before she concludes it, and to take care that she be not thereby engaged to any thing contrary to the duties which she owes to herself and others.
§ 29. Perpetual or temporary treaties, or treaties revocable at pleasure.
Nations may, in their treaties, insert such clauses and conditions as they think proper; they are at liberty to make them perpetual, or temporary, or dependent on certain events. It is usually most prudent not to engage for ever, as circumstances may afterwards intervene, by which the treaty might become very oppressive to one of the contracting parties. A nation may confine a treaty to the grant of only a precarious right reserving to herself the liberty of revoking it at pleasure. We have already observed (Book I. § 94) that a simple permission does not any more than long custom (Ibid. § 95), give any perfect right to a trade. Those things namely, permission and customs are therefore not to be confounded with treaties, not even with those which give only a precarious right.
§ 30. Nothing contrary to the tenor of a treaty can be granted to a third party.
When once a nation has entered into engagements by treaty, she is no longer at liberty to do, in favor of others, contrary to the tenor of the treaty, what she might otherwise have granted to them agreeably to the duties of humanity or the general obligation of mutual commerce; for she is to do for others no more than what is in her power; and, having deprived herself of the liberty of disposing of a thing, that thing is no longer in her power. Therefore, when a nation has engaged to another that she will sell certain merchandise or produce to the latter only as, for instance, corn she can no longer sell it to any other. The case is the same in a contract to purchase certain goods of that nation alone.
§ 31. How far lawful to give up by treaty the liberty of trading with other nations.
But it will be asked, how and on what occasions a nation may enter into engagements which deprive her of the liberty to fulfill her duties to others. As the duties we owe to ourselves are paramount to those we owe to others, if a nation finds her safety and substantial advantage in a treaty of this nature, she is unquestionably justifiable in contracting it, especially as she does not thereby interrupt the general commerce of nations, but simply causes one particular branch of her own commerce to pass through other hands, or insures to a particular people certain things of which they stand in need. If a state which stands in need of salt can secure a supply of it from another, by engaging to sell her corn and cattle only to that other nation, who will doubt but that she has a right to conclude so salutary a treaty? In this case, her corn or cattle are goods which she disposes of for supplying her own wants. But, from what we have observed (§ 28), engagements of this kind are not to be entered into without very good reasons. However, be the reasons good or bad, the treaty is still valid, and other nations have no right to oppose it (§ 27).
§ 32. A nation may abridge its commerce in favor of another.
Every one is at liberty to renounce his right; a nation, therefore, may lay a restriction on her commerce in favor of another nation, and engage not to traffic in a certain kind of goods, or to forbear trading with such and such a country, etc. And, in departing from such engagements, she acts against the perfect right of the nation with which she has contracted, and the latter has a right to restrain her. The natural liberty of trade is not hurt by treaties of this nature; for that liberty consists only in every nation being unmolested in her right to carry on commerce with those that consent to traffic with her; each one remaining free to embrace or decline a particular branch of commerce, as she shall judge most advantageous to the state.
§ 33. A nation may appropriate to herself a particular branch of trade.
Nations not only carry on trade for the sake of procuring necessary or useful articles, but also with a view to make it a source of opulence. Now, wherever a profit is to be made, it is equally lawful for every one to participate in it: but the most diligent may lawfully anticipate the others by taking possession of an advantage which lies open to the first occupier; he may even secure the whole entirely to himself, if he has any lawful means of appropriating it. When, therefore, a particular nation is in sole possession of certain articles, another nation may lawfully procure to herself by treaty the advantage of being the only buyer, and then sell them again all over the world. And, as it is indifferent to nations from what hand they receive the commodities they want, provided they obtain them at a reasonable price, the monopoly of this nation does not clash with the general duties of humanity, provided that she do not take advantage of it to set an unreasonable and exorbitant price on her goods. Should she, by an abuse of her monopoly, exact an immoderate profit, this would be an offence against the law of nature, as, by such an exaction, she either deprives other nations of a necessary or agreeable article which nature designed for all men, or obliges them to purchase it at too dear a rate: nevertheless, she does not do them any positive wrong, because, strictly speaking, and according to external right, the owner of a commodity may either keep it or set what price he pleases on it. Thus, the Dutch, by a treaty with the king of Ceylon, have wholly engrossed the cinnamon trade: yet, whilst they keep their profits within just limits, other nations have no right to complain.
But, were the necessaries of life in question were the monopolist inclined to raise them to an excessive price other nations would be authorized by the care of their own safety, and for the advantage of human society, to form a general combination in order to reduce a greedy oppressor to reasonable terms. The right to necessaries is very different from that to things adapted only to convenience and pleasure, which we may dispense with if they be too dear. It would be absurd that the subsistence and being of other nations should depend on the caprice or avidity of one.
§ 34. Consuls.7
Among the modern institutions for the advantage of commerce, one of the most useful is that of consuls, or persons residing in the large trading cities, and especially the seaports, of foreign countries, with a commission to watch over the rights and privileges of their nation, and to decide disputes between her merchants there. When a nation trades largely with a country, it is requisite to have there a person charged with such a commission: and, as the state which allows of this commerce must naturally favor it, for the same reason, also, it must admit the consul. But, there being no absolute and perfect obligation to this, the nation that wishes to have a consul, must procure this right by the commercial treaty itself.
The consul being charged with the affairs of his sovereign, and receiving his orders, continues his subject, and accountable to him for his actions.
The consul is no public minister (as will appear by what we shall say of the character of ministers, in our fourth book), and cannot pretend to the privileges annexed to such character. Yet, bearing his sovereign’s commission, and being in this quality received by the prince in whose dominions he resides, he is, in a certain degree, entitled to the protection of the law of nations. This sovereign, by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of me consul would be nugatory and delusive.
The functions of a consul require, in the first place, that he be not a subject of the state where he resides: as, in this case, he would be obliged in all things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his office.
They seem even to require that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned unless he himself violate the law of nations by some enormous crime.
And, though the importance of the consular functions be not so great as to procure to the consul’s person the inviolability and absolute independence enjoyed by public ministers, yet, being under the particular protection of the sovereign who employs him, and intrusted with the care of his concerns, if he commits any crime, the respect due to his master requires that he should be sent home to be punished. Such is the mode pursued by states that are inclined to preserve a good understanding with each other. But the surest way is, expressly to settle all these matters, as far as practicable, by the commercial treaty.
Wicquefort, in his treatise of The Ambassador, Book I. § 5, says, that consuls do not enjoy the protection of the law of nations, and that, both in civil and criminal cases, they are subject to the justice of the place where they reside. But the very instances he quotes contradict his proposition. The states-general of the United Provinces, whose consul had been affronted and put under arrest by the governor of Cadiz, complained of it to the court of Madrid as a breach of the law of nations. And, in the year 1634, the republic of Venice was near coming to a rupture with pope Urban VIII. on account of the violence offered to the Venetian consul by the governor of Ancona. The governor, suspecting this consul to have given information detrimental to the commerce of Ancona, had persecuted him, seized his furniture and papers, and caused him to be summoned, declared guilty of contumacy, and banished under pretense that, contrary to public prohibition, he had caused goods to be unloaded in a time of contagion. This consul’s successor he likewise imprisoned. The Venetian senate warmly insisted on having due satisfaction: and, on the interposition of the ministers of France, who were apprehensive of an open rupture, the pope obliged the governor of Ancona to give the republic satisfaction accordingly.
In default of treaties, custom is to be the rule on these occasions; for, a prince, who receives a consul without express conditions, is supposed to receive him on the footing established by custom.
1. The restrictions on trade, which have been enforced absolutely or conditionally, by almost all the powerful nations of the world, have been the cause of a thousand wars, and the groundwork of innumerable treaties; and, therefore, it is important that we should give them full consideration.
With respect to the freedom of trade. It has been laid down by the wisest of politicians and best of men, that every nation ought not only to countenance trade as far as it reasonably can, but even to protect and favor it; and that freedom being very favorable to commerce, it is implied in the duties of nations that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions; and this position is supported by the reasons thus urged by Vattel (supra, § 21).
It was this feeling that influenced that celebrated statesman, Mr. Pitt, in concluding the commercial treaty with France, in 1786. Great Britain and France had, for centuries before, contrary to every sound principle of policy, acted as rival enemies,2 and their commercial policy was dictated by the same spirit which prompted their unhappy wars; insomuch, that, though they possessed the materials of a most extensive commerce the one abounding in all that art and industry can supply, and the other in productions of a more favored soil and climate the exchange of their peculiar produce was discouraged by a complicated system of restraint and heavy duties.3 The object of the commercial treaty alluded to was, to abolish those pernicious restraints, and, by connecting the two countries in the bonds of a reciprocal trade, to pledge them, by their mutual interest, to an oblivion of their ancient animosities. The view in which that treaty originated was explained by Mr. Pitt, when it was submitted to Parliament; and the sentiments which he expressed gave to this measure a remarkable character of moderation and wisdom. In reply to an argument inculcating constant jealousy of France,3 he inquired, “whether. in using the word jealousy, it was meant to recommend to this country such a species of jealousy as should be either mad or blind, such a species of jealousy as should induce her either madly to throw away what was to make her happy, or blindly grasp at that which must end in her ruin? Was the necessity of a perpetual animosity with France so evident and so pressing that for it we were to sacrifice every commercial advantage we might expect from a friendly intercourse with that country? or, was a pacific connection between the two kingdoms so highly offensive that even an extension of commerce could not counterpoise it?” Towards the close of the same speech, he observes, “The quarrels between France and Britain had too long continued to harass not only those two great nations themselves, but had frequently embroiled the peace of Europe; nay, had disturbed the tranquillity of the most remote parts of the world. They had by their past conduct, acted as if they were intended for the destruction of each other; but he hoped the time was now come when they should justify the order of the universe and show that they were better calculated for the more amiable purposes of friendly intercourse and mutual benevolence.”; “Considering the treaty,” he continued, “in a political view, he should not hesitate to contend against the too frequently advanced doctrine, that France was and must be the unalterable enemy of Britain; his mind revolted from this position as monstrous and impossible. To suppose that any nation was unalterably the enemy of another, was weak and childish: it had neither its foundation in the experience of nations nor in the history of man. It was a libel on the constitution of political societies, and supposed diabolical malice in the original frame of man.” C.
2. 2 Smith’s Wealth of Nations, pp. 226-7, 252-3; Tucker’s Pamphlet, Cui Bono.
3. See Smith’s Wealth of Nations, vol. 4, 169, per Buchanan; and see Andersen’s Hist. Com. vol. 4, pp. 634 to 639.
4. It is a general rule of the law of nations, that, in time of peace, no nation is entitled to limit or impose regulations upon the commerce which any other independent state may think fit to carry on, either externally, with the natives of other independent states, or internally, amongst its own subjects. Puffend. b. 4, c. 5, s. 10, p. 168; Marten’s L.N. 152-53; where see the different authorities in support of this position. It there seems that an exclusive trade may be acquired by a treaty with the nations of India who have not before entered into a restrictive treaty. See also 1 Chit. Com. L. 76. C.
5. See further, 1 Chit. Com. L. 80, n. 2; Grotius, 158; Puff. b. 4, c. 5, s. 10, p. 168.
6. See, more fully, 1 Chitty’s Com. L. 35.
7. See further as to consuls, post. B. 4, ch 8, s. 75, p. 461. This and the following sections are much too concise upon the important subject of consuls. See more fully 1 Chitty’s Commercial Law, 48 to 73; statute 6 Geo. 4. c. 87; Warden on Consular Establishments, Paris, A.D. 1813; Madame de Steck, a Berlin. 1790; Anderson’s Hist. Commerce, index, titles “Conservator,” and “Consul;” and see decisions Albreton v. Sussman, 2 Ves. & B. 323; 4 Bar. & Cres. 886; 8 Moore’s Rep. 632; 7 T.R. 251; 8 East. 364; 2 Chalm. Opin. 294. A foreign consul cannot sue a merchant here for any supposed services in that character De Lima v. Holdimand, 1 Ryan & Moody, 45: nor is he privileged from arrest, Vivash v. Belcher. 3 Mau. & Selw. 284. (He is liable as garnishee in the case of a foreign attachment in the state courts, Kidderlin v. Meyer, 2 Mile’s Rep. 242; and to indictment for misdemeanor in the courts of the United States, which have exclusive jurisdiction. U. States v. Ravara, 2 Dall. Rep. 297; Comm. v. Kozloff, 5 Serg, & Rawle, 545. The State v. De la Forest. 2 Nott & McCord’s Rep. 545, contra.)