ancient history are of no value, except as illustrative of the grounds and origin of modern usage. In like manner with respect to commerce, it rests with the sovereign to prohibit or allow the importation of any kind of goods, or the carrying on of any kind of trade at his pleasure (s). This right has been very generally exercised by states, who have excluded foreigners from their coasting, fishing and colonial trades (t). When the United States passed a law which put a stop to their commerce with all the world, no other power complained of it, and the foreign government most affected by it and against whose interests it was immediately directed declared; that as a municipal regulation foreign states had no concern with it, and no right to make any complaint (u). So as to what have been termed matters of innocent use, as the liberty of passage and navigation by land and by water. These are imperfect rights which, if denied, cannot be enforced. The sovereign is entitled to judge of the innocence of the use and to refuse or allow it at his pleasure. His consent cannot be compelled without a violation of his rights (v). Grotius, indeed, asserts a right of passage over the territories of independent states, and that not merely for unarmed persons and for a pacific purpose, such as commerce or emigration; but for an armed force in the prosecution of a just war (w). But he is probably speaking only of the law of nature (x). In any other sense his doctrine would be inconsistent with the rights of sovereignty. So he appears to have been understood by Bynkershoek; Rogo interea rationes illæ (s) Heinecc. El. ii. 169, 177, (n), 189, 196, 208, (n); Puff. iv. 6, x. ; Valin, Comm. i. 217; Vatt. i. 90, 92, 94, 99. (t) Church v. Hubbard, 2 Cranch, 235. (u) Kent Comm. i. 32. (v) Puff. iii. 3, v. 6; Vatt. i. 288-ii. 127, 128-iii. 120, 123; Heinecc. El. ii. 10, 196, 208. (w) Grot. ii. 2, xiii. (x) Vid. Grot. ii. 18, i. Sed facessant, ut et alia quas ceu ex naturali jure pro mari libero adferre placet, de commerciorum libertate, de facultate transeundi per mare liberâ, et quæ alia sunt sequioris notæ. tamen miror cur non eodem acumine etiam terram, dominio subjici posse negent: vel sane iter viam actum sive pactis et stipulationibus per fundos omnes omnibus permittant; ita quippe abolitis tributis et vectigalibus ad simulacrum pristinæ communionis res ocyus esset composita (y). It has been justly observed, that the instances which Grotius cites are not examples of the exercise of a lawful right, but of unlawful violence (z); that it is a gratuitous assumption, that the passage must be innocent; and that, if it were proved to be so, the owner of the territory is not bound to grant it. It is essential to the right of property, that the owner may refuse the use of it (a). Sine facultate alios usu rei excludendi non intelligitur dominium, ea igitur ad dominii essentiam pertinet (b). Transitum quamvis innoxium et inermem a domino recte prohiberi omnino dicendum; licet rursus contradicat o peyar de jure belli et pacis libro ii. capite iii. s. xii. De terrâ marique illud ipse negat, sed nullo jure. Nemo, me invito, re meâ recte utitur fruitur: alia est humanitatis, alia juris regula (c). The territory of a state could in no sense be called its own, unless it had an exclusive right to its enjoyment (d). Consequently, every state has a right to refuse a passage over its territories, although such refusal may under some circumstances be an act of inhumanity (e). A military force can never gain immunities other than those which war gives by entering a foreign territory against the will of its sovereign. It is obvious, that the passage (y) Bynk. D. M. ix. (2) Gronov. ad Grot. ii. 2, xiii. (a) Grot. par Barbey. ii. 2, xiii. (n). (b) Heinecc. Prælec. ad Puff. i. xii. 3. (c) Bynk. D. M. iv. (d) Vatt. ii. § 79, 83; Church v. Hubbard, 2 Cranch, 234, per Marshall, C. J. (e) Puff. iii. 3, v. 8. F of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominions it passed. Such a practice would break down some of the most decisive distinctions between peace and war; and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character; or of exposing itself to the frauds and stratagems of a power, whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these, that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force, and an army marching into the dominions of another sovereign may justly be considered as committing an act of hostility, and if not opposed by force acquires no privilege by its irregular and improper conduct. It may, however, be questioned, whether any other than the sovereign power of a state be capable of deciding, that the military commander of such an army is without a license. When a sovereign allows the troops of a foreign prince to pass through his dominions he is understood to waive a portion of his territorial jurisdiction. In such case without an express declaration waiving jurisdiction over the army, to which this right of passage has been granted; the sovereign, who should attempt to exercise it, would undoubtedly be considered as violating his faith. By the exercise of it the purpose, for which the free passage was granted, would be defeated: and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it is applicable, and would be withdrawn from the control of the sovereign, whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and inflict those punishments, which the government of his army requires. If the consent of the sovereign, instead of being expressed by a particular license, be expressed by a general declaration, that all foreign troops may pass through a specified tract of country; every immunity that would be conferred by a special license would in like manner be conferred by such general permission (ƒ). The passage of ships over territorial portions of the sea or external water is a thing less guarded, than the passage of armies over land, and for obvious reasons. An army in the strictest state of discipline can hardly pass into a country without great inconvenience to the inhabitants; roads are broken up, the price of provisions is raised; the sick are quartered on individuals, and a general uneasiness and terror are excited; but the passage of two or three vessels, or of a fleet over external water may be neither felt nor perceived. For this reason the act of passing inoffensively over such portions of water, without any violence committed there, is not considered as a violation of territory; permission is not usually required. Such waters are considered as the common thoroughfare of nations, though they may be so far territory, as that any actual exercise of hostility is prohibited therein (g). So long as a state retains the right of self-government it does not forfeit its independence by contracting an unequal alliance, whereby some pre-eminence is conceded to its ally (h); nor by becoming a member of a federal union (i); nor by paying tribute (j); nor by accepting the protection of a foreign power (k) Nor do several states cease to be independent by being under one head; the proof of which is, that on the extinction of the reigning family the sovereignty reverts severally to each state (1). Twee Gebroeders, 3 Rob. 352. () Per Marshall, C. J. arg. Schooner Exchange, 7 Cranch, 139. (h) Grot. i. 3, xxi. i.; Vatt. iv. § 58. (1) Grot. i. 3, vii. 2. () Vatt. i. § 192-iv. § 58. (4) Grot. i. 3, xxi. 1; Vatt. i. § 192-iv. § 58. (1) Grot. i. 3, vii. 2. As every state is entitled to determine its own form of government, the identity and continuity of a state is not affected by any change therein (m). Nor is it affected by a national emigration to a new country (n); such as was practised by the German swarms, and was once contemplated by the Dutch. Nor in a monarchical government is it affected by the demise of the sovereign, for the heir is deemed to be one and the same person with his ancestor for all legal purposes (o). The public debts of a state are not affected by any change in the form of its government (p). Where a state is divided into distinct states, either by war or by mutual consent, the obligations to which it was liable are not affected by such division, and must be discharged either jointly or severally in rateable proportions (q). In like manner where two states are united, their several rights and obligations are not extinguished, but incorporated (r). Upon this principle, when Upper and Lower Alsace and other places, comprising two-thirds of a province, liable to a certain debt were ceded to France by the treaty of Munster; it was stipulated that France should pay two-thirds of the debt (s). The extinction of a state is not to be contemplated in modern times. The instances given by Grotius are furnished by the ferocity of the Greeks and Romans. It occurred, when a nation was expelled from its country and led into captivity, or where it was deprived of all independent authority and made a subject province (t). The title which a state has to its territories may be acquired in three ways: First, by occupancy; Secondly, by cession; Thirdly, by prescription. (m) Grot. ii. 9, viii. 1; Bynk. Q. J. P. ii. xxi. § 1. (n) Grot. ii. 9, vii.; Puff. viii. 12, 1. (0) Grot. ii. 9, xii. (p) Grot. ii. 9, viii.; Puff. viii. 12, ii.; Heinecc. El. ii. 231. |