CHAPTER III. RIGHT OR CLAIM OF INTERCOURSE.-RELATIONS OF FOREIGNERS WITHIN A TERRITORY OF A STATE. $ 59. of states, how far a We have already come to the conclusion that sovereignty in the strictest sense authorizes a nation to decide Intercourse upon what terms it will have intercourse with right. foreigners, and even to shut out all mankind from its borders. (§ 25.) If a protective tariff, or the prohibition of certain articles is no violation of rights, it is hard to say how far one state may not go in refusing to have commerce with another. If foreigners may be placed under surveillance, or may have various rights of citizens refused to them, why may they not bé excluded from the territory? If it be said that the destination of separate states, as of separate families, is to be helpful to one another, that entire isolation is impossible, still the amount of intercourse must be left to the judgment of the party interested; and if a state, judging incorrectly, strives to live within itself as much as possible, is it to be forced to change its policy, any more than to modify its protective tariff? And yet some kind of intercourse of neighboring states is so natural, that it must have been coeval with their foundation, and with the origin of law; it is so necessary, that to decline it, involves often extreme inhumanity; it is so essential to the progress of mankind, that unjust wars have been blessings when they opened nations to one another. There could, of course, be no international law without it. The following maxims relating to the so-called right, are, in substance, laid down by Heffter. (§ 33.) What a state may not do as it respects inter course. 1. Entire non-intercourse shuts a nation out from being a partner in international law.-[This, however, is not true, if international law is taken in its broadest sense, for to treat a nation, or its subjects, when these latter are fallen in with, as having no rights, because they have no intercourse with us, is not only inhuman but unjust.] 2. No nation can, without hostility, cut off another from the use of necessaries not to be obtained elsewhere. [But necessaries must not be confounded with articles highly desirable.] 3. No state has a right to cut another off from the innocent use of its usual ways of communication with a third state. "The older writers called this the jus transitus, or jus passagii innoxii, but disputed whether it is a perfect or imperfect right. Only necessary wants create a definite right. The refusal of something merely useful to one party, to grant which does the other no harm, is at most an unfriendly procedure. Many, as Grotius (II. 2, § 13), and Vattel (II. § 123, 132–134), decide, that there is a right in this case, but naturally have to reserve for the owner, the decision whether he will be harmed or not by parting with his commodities." 4. No state can, without violation of right, exclude another from intercourse with a third state against the will of the latter. 5. In its intercourse with others every state is bound to truth and honesty, [without which intercourse must be broken up]. 6. No state can exclude the properly documented subjects of another friendly state, or send them away after they have been once admitted without definite reasons, which must be submitted to the foreign government concerned. To these we may add that No state can withdraw from intercourse with others without a violation of a right gained by usage. No state can treat with cruelty, or deprive of their property the subjects of another, whom some calamity, such as the dis tress or stranding of a vessel, throws within its borders, without wrong and just claim of redress. § 60. Within these limits, intercourse, whether through travellers or merchants, is regulated by the free sovereign What a state may act of each state. Whether it will have a pass- do. port system, a protective tariff, special supervision of strangers; whether it will give superior commercial privileges to one nation over another; in short, whether it will be fair and liberal, or selfish and monopolizing, it must decide, like any private tradesman or master of a family, for itself. The law of nations does not interfere at this point with the will of the individual state.* It deserves to be remarked, however, that non-intercourse and restriction are fast disappearing from the commercial arrangements of the world, and that jealousy of foreigners is vanishing from the minds of all the more civilized nations, in the East as well as in the West. The feeling that there is a * There is a difficulty in the theory of international law, arising from the weakness of the claim which one state has to intercourse with another, compared with the immense and fundamental importance of intercourse itself. There can be no law of nations, no civilization, no world, without it, but only separate atoms; and yet we cannot punish, it is held, the refusal of intercourse, as a wrong done to us, by force of arms, but can only retaliate by similar conduct. I have, in § 25, endeavored to meet this by a parallel case,-marriage is all important, yet for commencing it entire consent of the parties is necessary. And yet, to put intercourse on the ground of comity or even of duty, fails to satisfy me. Practically, we may say that nations will have intercourse by trade and otherwise, whenever they find it to be for their interest; but the case of half-civilized or long secluded nations, like. Japan, which satisfy their own wants, and rather avoid than desire foreign articles, shows that long ages may elapse before views suggested by self-interest or suspicion are abandoned. Shall we then force them into intercourse? Perhaps we may, if we get a just occasion of war with them; but not because they take a position which, though disastrous for the interests of mankind, is yet an exercise of sovereignty. But apart from this theoretical view, there are many duties, duties of mutual help, incumbent on nations who hold intercourse with one another, which serve to facilitate such intercourse. Such are, aid to travellers, use of courts, and the like, which ought to be regarded as the necessary means of promoting admitted intercourse, and therefore as obligatory, when intercourse is once allowed. certain right for lawful commerce to go everywhere is in advance of the doctrine of 'strict right which the law of nations lays down. The Christian states, having tolerably free intercourse with one another, and perceiving the vast benefits which flow from it, as well as being persuaded that in the divine arrangements of the world, intercourse is the normal condition of mankind, have of late, sometimes under pretext of wrongs committed by states less advanced in civilization, forced them into the adoption of the same rules of intercourse, as though this were a right which could not be withheld. Recent treaties with China and Japan have opened these formerly secluded countries to commercial enterprise, and even to travel; and the novel sight of an ambassadar from Japan visiting our country will not be so strange as the concessions of trade which this shy people has already granted.* It is conceded, moreover, that the great roads of transit shall be open to all nations, not monopolized by one; and the newer commercial provisions quite generally place the parties to them on the footing of the most favored nations. This freedom and spread of intercourse is, in fact, one of the most hopeful signs in the present history of the world. entitled to protec tion. § 61. There could be “ercourse between nations if aliens and Individual aliens their property were not safe from violence, and even if they could not demand the protection of the state where they reside. This protection, be it observed, is territorial in its character, that is, it is due to them only within the territory of a state, on its vessels and when they are with its ambassadors, while the protection of citizens or subjects, as being parts or members of the state, ceases at no time and in no place. The obligation to treat foreigners with humanity, and to protect them when once admitted into a country, depends not on their belonging to a certain political community which has a function to defend its members, nor wholly on treaty, but on the essential rights of human nature. Hence * Since this was written, in 1859, a Japanese delegation has become a matter of fact. 2d ed. 1. It has been claimed with apparent justice, that aliens have a right of asylum. To refuse to distressed foreigners, as shipwrecked crews, a temporary home, or to treat them with cruelty, is a crime. As for the exile who has no country, international law cannot ensure his protection, but most nations, in ancient and modern times, that have passed beyond the inferior stages of civilization, have opened the door to such unfortunate persons, and to shut them out, when national safety does not require it, has been generally esteemed a flagitious and even an irreligious act. The case of aliens who have fled from their native country on ered in the sequel. account of crime, will be consid 2. The right of innocent passage has already been considered. It may be claimed on stronger grounds than the right of entering and settling in a country, for the refusal may not only, injure the aliens desirous of transit, but also the country into which they propose to go. The right of transit of armies, and of entrance of armed ships into harbors, will be considered by themselves. As their presence may be dangerous, to refuse transit or admission in these cases rests on grounds of its own. 3. The right of emigration. Formerly it was doubted whether an individual had a right to quit his country and settle else where, without leave from his government and in some countries he who did go had to sacrifice a part or his property.* At present such a right is very generally conceded, under certain limitations. "The right of emigration," says Heffter, "is inalienable: only self-imposed or unfulfilled obligations can restrict it." The relation of the subject to the sovereign is a voluntary one, to be terminated by emigration. But a state is not bound to allow the departure of its subjects, until all preexisting lawful obligations to the state have been satisfied. Notice, therefore, may be required of an intent to emigrate, and security be demanded for the satisfaction of back-standing * By the jus detractûs, droit de detraction, property to which strangers out of the country succeeded was taxed. By an analogous tax, as the gabelle d'emigration, those who left a country were amerced in part of their goods, immovable or movable. Such odious rights, says De Martens (I. § 90), although existing still, are very generally abolished. |