The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
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.
SINCE the law of nations treats as well of the duties of states as of their rights, it is not sufficient that we have explained, on the subject of innocent use, what all nations have a right to require from the proprietor: we are now to consider what influence his duties to others ought to have on their proprietor’s conduct. As it belongs to him to judge whether the use be really innocent, and not productive of any detriment or inconvenience to himself, he ought not to give a refusal unless it be grounded upon real and substantial reasons: this is a maxim of equity; he ought not even to stop at trifles, a slight loss, or any little inconvenience: humanity forbids this; and the mutual love which men owe to each other, requires greater sacrifices. It would certainly be too great a deviation from that universal benevolence which ought to unite the human race, to refuse a considerable advantage to an individual, or to a whole nation, whenever the grant of it might happen to be productive of the most trifling loss or the slightest inconvenience to ourselves. In this respect, therefore, a nation ought on all occasions to regulate her conduct by reasons proportioned to the advantages and necessities of others, and to reckon as nothing a small expense or a supportable inconvenience, when great good will thence result to another nation. But she is under no obligation to incur heavy expenses or embarrassments, for the sake of furnishing others with the use of any thing, when such use is neither necessary nor of any great utility to them. The sacrifice we here require is not contrary to the interests of the nation: it is natural to think that the others will behave in the same manner in return; and how great the advantages that will result to all states from such a line of conduct!
§ 132. Innocent passage.1
The introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purposes of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular occasions, when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant, and which he cannot refuse if he wishes to discharge his duty, and not abuse his right of property. The count of Lupfen having improperly stopped some merchandise in Alsace, and complaints being made on the subject to the emperor Sigismund, who was then at the council of Constance, that prince assembled the electors, princes, and deputies of towns, to examine the affair. The opinion of the burgrave of Nuremberg deserves to be mentioned: “God,” said he, “has created heaven for himself and his saints, and has given the earth to mankind, intending it for the advantage of the poor as well as of the rich. The roads are for their use, and God has not subjected them to any taxes.” He condemned the count of Lupfen to restore the merchandise, and to pay costs and damages, because he could not justify his seizure by any peculiar right. The emperor approved this opinion, and passed sentence accordingly.2
§ 133. Sureties may be required.
But, if any apprehension of danger arise from the grant of liberty to pass through a country, the state has a right to require sureties: the party who wishes to pass cannot refuse them, a passage being only so far due to him as it is attended with no inconvenience.
§ 134. Passage of merchandise.3
In like manner, a passage ought also to be granted for merchandise: and, as this is in general productive of no inconvenience, to refuse it without just reason is injuring a nation, and endeavoring to deprive her of the means of carrying on a trade with other states. If this passage occasions any inconvenience, any expense for the preservation of canals and highways, we may exact a compensation for it by toll duties (Book I. § 303).
§ 135. Residence in the country.
In explaining the effects of domain we have said above (§§ 64 and 100) that the owner of the territory may forbid the entrance into it, or permit it on such conditions as he thinks proper. We were then treating of his external right, that right which foreigners are bound to respect. But now that we are considering the matter in another view, and as it relates to his duties and to his internal right, we may venture to assert that he cannot, without particular and important reasons, refuse permission, either to pass through or reside in the country, to foreigners who desire it for lawful purposes. For, their passage or their residence being in this case an innocent advantage, the law of nature does not give him a right to refuse it: and, though other nations and other men in general are obliged to submit to his judgment (§§ 128 and 130), he does not the less offend against his duty, if he refuses without sufficient reason: he then acts without any true right; he only abuses his external right. He cannot, therefore without some particular and cogent reason. refuse the liberty of residence to a foreigner who comes into the country with the hope of recovering his health, or for the sake of acquiring instruction in the schools and academies. A difference in religion is not a sufficient reason to exclude him, provided he do not engage in controversial disputes with a view to disseminate his tenets; for, that difference does not deprive him of the rights of humanity.
§ 136. How we are to act towards foreigners who desire a perpetual residence.
We have seen (§ 125) how the right of necessity may in certain cases authorize a people, who are driven from the place of their residence, to settle in the territory of another nation. Every state ought, doubtless, to grant to so unfortunate a people every aid and assistance which she can bestow without being wanting to herself: but to grant them an establishment in the territories of the nation, is a very delicate step, the consequences of which should be maturely considered by the conductor of the state. The emperors Probus and Valens experienced the evil effects of their conduct in having admitted into the territories of the empire numerous bands of Gepidæ, Vandals, Goths, and other barbarians.4 If the sovereign finds that such a step would be attended with too great an inconvenience or danger, he has a right to refuse an establishment to those fugitive people, or to adopt, on their admission, every precaution that prudence can dictate to him. One of the safest will be, not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. Men who have not been able to defend their own country, cannot pretend to any right to establish themselves in the territory of another, in order to maintain themselves there as a nation in a body.5 The sovereign who harbors them may therefore disperse them, and distribute them into the towns and provinces that are in want of inhabitants. In this manner his charity will turn to his own advantage, to the increase of his power, and to the greater benefit of the state. What a difference is observable in Brandenburg since the settlement of the French refugees! The great elector, Frederic William, offered an asylum to those unfortunate people; he provided for their expenses on the road, and with truly regal munificence established them in his states; by which conduct that beneficent and generous prince merited the title of a wise and able politician.
§ 137. Right accruing from a general permission.
When, by the laws or the custom of a state, certain actions are generally permitted to foreigners, as, for instance, traveling freely through the country without any express permission, marrying there, buying or selling merchandise, hunting, fishing, etc., we cannot exclude any one nation from the benefit of the general permission without doing her an injury, unless there be some particular and lawful reason for refusing to that nation what is granted indiscriminately to others. The question here, it is to be observed, only relates to those actions which are productive of innocent advantage: and, as the nation allows them to foreigners without distinction, she, by the very nature of that general permission, affords sufficient proof that she deems them innocent with respect to herself; which amounts to a declaration that foreigners have a right to them (§ 127): the innocence of such acts is manifested by the confession of the state; and the refusal of an advantage that is manifestly innocent, is an injury (§ 129). Besides, to attempt without any reason to lay one nation under a prohibition where an indiscriminate permission is enjoyed by all others, is an injurious distinction, since it can only proceed from hatred or contempt. If there by any particular and well-founded reason for the exception, the advantage resulting from the act in question can no longer be deemed an innocent one with respect to the excepted nation; consequently no injury is done to them. The state may also by way of punishment, except from the general permission a people who have given her just cause of complaint.
§ 138. A right granted as a favor.
As to rights of this nature granted to one or more nations for particular reasons, they are conferred on them as favors, either by treaty, or through gratitude for some particular service: those to whom the same rights are refused cannot consider themselves as offended. The nation does not esteem the advantage accruing from those acts to be an innocent one, since she does not indiscriminately allow them to all nations: and she may confer on whom she pleases any rights over her own property, without affording just grounds to anybody else, either for uttering a complaint, or forming pretensions to the same favor.
§ 139. The nation ought to be courteous.
Humanity is not confined to the bare grant of a permission to foreign nations to make an innocent use of what belongs to us: it moreover requires that we should even facilitate to them the means of deriving advantage from it, so far as we can do this without injury to ourselves. Thus, it becomes a well-regulated state to promote the general establishment of inns where travelers may procure lodging and food at a fair price, to watch over their safety, and to see that they be treated with equity and humanity. A polite nation should give the kindest reception to foreigners, receive them with politeness, and on every occasion show a disposition to oblige them. by these means every citizen, while he discharges his duty to mankind in general, will at the same time render essential services to his country. Glory is the certain reward of virtue; and the good-will which is gained by an amiable character, is often productive of consequences highly important to the state. No nation is entitled to greater praise in this respect than the French: foreigners nowhere meet a reception more agreeable, or better calculated to prevent their regretting the immense sums they annually spend at Paris.
1. See, in general, 1 Chitty’s Com. Law, 84, 88.
2. Stettler, vol. i. p. 114. Tschudi, vol ii. pp. 27, 28.
3. Pufendorf, b. 3, ch. 3, s. 6. p. 29.
4. Vopiscus, Prob. c. sviii. Ammian. Marcell. lib. xxxi. Socrat. Hist. Eccles. lib. iv. c. 28.
5. Cæsar replied to the Tenchtheri and Usipetes, who wanted to retain possession of the territories they had seized, that it was not just for them to invade the territories of others, since they had not been able to defend their own. Neque verum esse, qui suos fines tueri non potuerint, alienos occupare. De Bello Gallico, lib. iv, cap. vi.