Note Ed. A contract made between a revolted colony in that character with the subject of another state that has not as yet recognised such revolted colony as an independent state, is illegal and void, and will not be given effect to by the Court of Chancery, or any other court in this country.
City of Berne v.
Bank of England , 9 Ves. Clement , 11 Moore, ; 2 Car. Powles , 2 Sim.
Thompson , cited id. Barclay , 2 Sim. Clement , 11 Moore. Palmer , 3 Wheat.
To supply such a revolted colony or even any independent state with money, without leave of the government to which a subject belongs, is illegal, because that would be assisting such colony against the parent country to which it belongs; and also because it would create objects and interests on the part of the subject that might in case of war be injurious to his own government. Observations in Thompson v, Powles , 2 Sim. Rothschild , 12 Moore, ; 4 Bing. Information against Peltier filed in Crown Office, K. Commercial L.
To the example of the Romans may be added that of the English in former days, — since, on the occasion of a navigator being accused of having committed some depredations on the natives of India. A LL 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.
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.
Every nation ought, therefore, not only to countenance trade, as far as it reasonably can, but even to protect and favour it. The care of the public roads, the safety of travellers, the establishment of ports, of places of sale, of well-regulated fairs, all contribute to this end. Freedom being very favourable 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. 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.
This common right of all nations is, at present, generally acknowledged under the appellation of freedom of trade.
We have already seen Book I. 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. When the Spaniards attacked the Americans, under a pretence that those people refused to traffic with them, they only endeavoured to throw a colourable veil over their own insatiable avarice. These few remarks, together with what we have already said on.
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. 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.
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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. 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.
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. Those things — namely, permission and customs — are therefore not to be confounded with treaties, — not even with those which give only a precarious right.
When once a nation has entered into engagements by treaty, she is no longer at liberty to do, in favour 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. But it will be asked, how and on what occasions a nation may enter into engagements which deprive her of the liberty to fulfil 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.
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.
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 loo dear. It would be absurd that the subsistence and being of other nations should depend on the caprice or avidity of one.