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 neighbouring 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.) 1. Entire non-intercourse shuts a nation out from being a ́partner in international law. [This, however, is not What a state true, if international law is taken in its broadest may not do as it respects intersense, for to treat a nation, or its subjects, when these course. 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 distress or stranding of a vessel, throws within its borders, without wrong and just claim of redress. $ 60. What a state may do. Within these limits, intercourse, whether through travellers or merchants, is regulated by the free sovereign act of each state. Whether it will have a passport 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 monopolising, it must decide, like any private tradesman cr master of a family, for itself. The law of nations does not interfere at this point with the will of the individual state.1 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 civilised nations, in the East as well as in the West. The feeling that there is a 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 civilisation, 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 ambassador from Japan visiting our country will not be so strange as 1 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 civilisation, 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, endeavoured 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 coinity 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-civilised 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 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. we may, 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. 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 monopolised by one; and the newer commercial provisions quite generally place the parties to them on the footing of the most favoured nations. This freedom and spread of intercourse is, in fact, one of the most hopeful signs in the present history of the world. § 61. tection. There could be no intercourse between nations if aliens and their property were not safe from violence, and even Individual aliens if they could not demand the protection of the state entitled to prowhere 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 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 civilisation, 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 account of crime, will be considered in the sequel. 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 harbours, 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 elsewhere, without leave from his government; and in some countries he 1 Since this was written, in 1859, a Japanese delegation has become a matter of fact. 2nd ed. who did go had to sacrifice a part of his property. At present such a right is very generally conceded, under certain limitations. "The right of emigration,' says Heffter, 'is inalienable: only selfimposed 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 pre-existing 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 obligations, before the person in question is allowed to leave the country.2 De Martens writes to this effect. It belongs to universal and positive public law to determine how far the state is authorised to restrict or prevent the emigration of the natives of a country. Although the bond which attaches a subject to the state of his birth or his adoption be not indissoluble, every state has a right to be informed beforehand of the design of one of its subjects to expatriate himself, and to examine whether by reason of crime or debt, or engagements not yet fulfilled towards the state, it is authorised to retain him longer. These cases excepted, it is no more justified in prohibiting him from emigrating, than it would be in prohibiting foreign sojourners from doing the same. These principles have always been followed in Germany. They have been sanctioned even by the federal pact of the German confederation, as far as relates to emigration from the territory of one member of the confederation to that of another.' Relation of aliens § 62, Foreigners admitted into a country are subject to its laws, unless the laws themselves give them, in a greater to the laws, and or less degree, exemption. This is rarely done, and their condition. the general practice of all Christian states treats foreigners except some especial classes of them-as transient subjects of the state where they reside, or on whose ships they sail over the high sea. They are held to obedience to its laws and punished for disobeying them, nor is it usual to mitigate their punishment on account of their ignorance of the law of the land. They are, again, as we have seen, entitled to protection, and failure to secure this, or any act of oppression may be a ground of complaint, of retorsion, or even of war, on the part of their native country. On the other hand, the law of the land 1 By the jus detractus, droit de traction, 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. 2 Heffter, § 15, § 33. 3 Précis, &c. Paris ed. of 1858, § 91. may without injustice place them in an inferior position to the native-born subject. Thus they may be obliged to pay a residence tax, may be restricted as to the power of holding land, may have no political rights, may be obliged to give security in suits where the native is not, may be forbidden to enter into certain callings, may be subjected to special police regulations, without any ground for complaint that they are oppressed. But most. restrictions upon foreigners have disappeared with the advance of humane feeling and the increasing frequency of intercourse between nations, until they are, in almost all Christian countries, in all rights excepting political, nearly on a level with nativeborn persons. In fact, if foreigners are admitted to establish themselves in a country, it is but justice that all private rights should be accorded to them. Thus the courts of their domicil ought to be as open to them as to the native-born citizen, for collecting debts and redressing injuries. § 63. comity towards aliens, illus The progress of humanity in the treatment of foreigners may be shown by the following brief sketch, including Progress of huonly Greece and Rome and the Christian states. In manity and of Aristocratic Greece different policies prevailed. and agricultural states were in general jealous of trated. strangers; democratic and commercial ones viewed them with favour. Sparta was called Expóčevos, as excluding them and watching them while in the territory. At Athens, where the policy was humane and liberal, domiciled strangers—metoeci— were subject to a small stranger's tax, had heavier pecuniary burdens than the native citizen, were required to serve in the army and navy, and needed a patron for the transaction of legal business. Their great numbers, equal to one-half of the citizens, show that they prospered under this policy, which was extended to barbarians as well as to Greeks. Sometimes they attained, by vote of the community, to full citizenship. A special but smaller class of foreigners—the iσoreλeis-had a status more nearly like that of the citizen than the ordinary metoeci. In many states of Greece, individual aliens, or whole communities, received by vote some of the most important civic rights, as those of intermarriage, of holding real estate within the territory, and of immunity from taxation. (ἐπιγαμία, ἔγκτησις and ἀτέλεια.) In Rome, foreigners enjoyed those rights which belonged to the jus gentium; they could acquire and dispose of property, could sue in the courts, and had an especial magistrate to attend to their cases at law, but could make no testament, nor had they the connubium and commercium of Roman citizens. In the Germanic states, after the fall of the Roman empire, F |