seen from the following extract from Burlamaqui (g) (who repeats the opinion of Grotius (h) and Heineccius):—“ In "civil societies" (he says), "when a particular member has "done an injury to a stranger, the governor of the common"wealth is sometimes responsible for it, so that war may be "declared against him on that account. But to ground this "kind of imputation, we must necessarily suppose one of "these two things, sufferance or reception (i), viz. either that "the sovereign has suffered this harm to be done to the

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stranger, or that he afforded a retreat to the criminal. In "the former case it must be laid down as a maxim, that a "sovereign who, knowing the crimes of his subjects—as, "for example, that they practise piracy on strangers,—and being also able and obliged to hinder it, does not hinder it, "renders himself criminal, because he has consented to the "bad action, the commission of which he has permitted, and "consequently furnished a just reason of war. The two "conditions above mentioned, I mean the knowledge and "sufferance of the sovereign, are absolutely necessary, the one "not being sufficient without the other to communicate any "share in the guilt. Now it is presumed that a sovereign "knows what his subjects openly and frequently commit; "and as to his power of hindering the evil, this likewise is always presumed, unless the want of it be clearly proved.” So Vattel (j): "Si un souverain qui pourrait retenir ses 'sujets dans les règles de la justice et de la paix, souffre qu'ils maltraitent une nation, ou dans son corps ou dans

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(g) The Principles of Natural and Public Law, by J. J. Burlamaqui, Professor at Geneva. I only possess the English translation, London, 1763. Sir J. Mackintosh calls him "an author of distinguished merit."

(h) See Grotius de J. B. et P. 1. ii. c. xxi.: De Pœnarum Communicatione; and the admirable Prælectiones of Heineccius on this chapter.

Vattel, 1. ii. c. vi.: "De la part que la nation peut avoir aux actions de ses citoyens."

(i) “Patientia aut receptu.”—Grot. & Heinecc. (j) Book ii. c. vi. s. 72.

"ses membres, il ne fait pas moins de tort à toute la nation, que s'il la maltraitait lui-même " (k).

The act of an individual citizen, or of a small number of citizens, is not to be imputed, without special proof, to the nation or Government of which they are subjects (1). A different rule would of course apply to the acts of large numbers (m) of persons, especially if they appeared in the array and with the weapons of a military force, as in the case of the invasion of Portugal which has been referred to above.

CCXX. The consideration of the means by which nations have enabled themselves to perform this duty towards their neighbours and the rest of the world, and of the very important and much-vexed question of the lawfulness of allowing a friendly Power to raise troops in a neutral territory, will be discussed when we enter upon the Right of Jurisdiction, incident to a State, over all persons and things within the territory, and also in a later part of this work upon the

(k) Letter to Lord Ashburton, by R. Phillimore, pp. 27, 183. London,

1842.

(7) "Cependant, comme il est impossible à l'Etat le mieux réglé, au souverain le plus vigilant et le plus absolu, de modérer à sa volonté toutes les actions de ses sujets, de les contenir en toute occasion dans la plus exacte obéissance, il serait injuste d'imputer à la nation ou au souverain toutes les fautes des citoyens. On ne peut donc dire, en général, que l'on a reçu une injure d'une nation, parce qu'on l'aura reçue de quelqu'un de ses membres (on ne peut imputer à la nation les actions des particuliers).”— Vattel, t. i. l. ii. c. vi. s. 73.

(m) Heffters, zweites Buch, Völkerrecht im Zustand des Unfriedens, s. 148, pp. 258-9: After saying that what the State may not lawfully do collectively it may not do individually-"Sollte freilich die Theilnahme der Unterthanen eine massenhafte werden, dadurch die Aufmerksamkeit und Bedenklichkeit der Gegenpartei erregen, demnach Represalien derselben befürchten lassen."

Zouch, de Judicio inter Gentes, pars ii. s. vi. p. 120 (ed. Oxoniæ, 1650): "An repræsaliæ sint licita? Imperator Zeno equitati naturali contrarium dicit ut, pro alieno debito, alii molestentur; et in Novella Justiniani prohibentur pignorationes pro aliis: addita causa, quod rationem non habet, alium esse debitorem, alium exigi: Jure tamen Gentium introductum apparet, ut pro eo quod præstare debet civilis societas, aut ejus caput, sive per se primo, sive quod alieno debito jus non reddendo se obstrinxerint, obligata sint omnia bona subditorum.”

Rights and Duties of Neutrals. But this present is not an unfit place for offering some general remarks upon the control exercised by the State over strangers, whether domiciled and commorant (habitans), or merely travellers through the country (étrangers qui passent) (n).

It is a received maxim of International Law, that the Government of a State may prohibit the entrance of strangers into the country, and may therefore regulate the conditions. under which they shall be allowed to remain in it, or may require and compel their departure from it. According to the Law of England, local allegiance is due from an alien or stranger born, so long as he continues within the protection and dominion of the Crown; and it ceases the instant he transfers himself from this kingdom to another. The allegiance and the protection of the stranger, therefore, are both confined, in point of time, to the duration of the residence; and in point of locality, to the dominion of the British Empire (o). During periods of revolutionary disturbances both on the Continent and within this kingdom, it has been customary to pass Acts of Parliament authorizing certain high officers of the State to order the departure of aliens from the realm within a specified time, and their imprisonment in case of refusal. These Acts have generally been limited in their duration : the operation of the last was confined to the period of one year (p).

(n) Vattel, l. i. c. xix. s. 213, l. ii. c. viii. passim. (0) Calvin's case, 7 Coke's Reports, 6 a.

Stephen's Blackstone, vol. ii. book iv. pt. i. c. 2.

1 Hale's Pleas of the Crown, 60.

(p) "This power," as Mr. Canning observed, "had undoubtedly been exercised by the Crown, sometimes with, sometimes without, the consent of Parliament" (5 Canning's Speeches, p. 255). The 33 Geo. III. c. 4, A.D. 1793, was the first Alien Act passed by the Parliament of this kingdom, and was followed up by Lord Grenville's note, dismissing Monsieur Chauvelin.

(Translation.)

"Whitehall, Jan. 24, 1793.

"I am charged to notify to you, Sir, that the character with which you have been invested at this Court, and the functions of which have been

so long suspended, being now entirely terminated by the fatal death of his late Most Christian Majesty, you have no more any public character here.

"The King can no longer, after such an event, permit your residence here. His Majesty has thought fit to order that you should retire from this kingdom within the term of eight days; and I herewith transmit to you a copy of the order which his Majesty, in his Privy Council, has given to this effect.

"I send you a passport for yourself and your suite; and I shall not fail to take all the other necessary steps, in order that you may return to France with all the attentions which are due to the character of Minister Plenipotentiary from his Most Christian Majesty, which you have exercised at this Court.

"I have the honour to be, &c.

(State Papers on the War, p. 245.)

"GRENVILLE.”

This Act was followed up by the under-mentioned statutes, all now repealed:

The last Statute was passed on June 9, 1848, 11 & 12 Vict. c. 20, "An Act to authorize for one Year and to the end of the then next Session of Parliament the Removal of Aliens from the Realm."

Horner's Memoirs, vol. ii. p. 522. Speech on the Alien Bill, 1816.

CHAPTER XI.

RIGHT TO A FREE DEVELOPMENT OF NATIONAL
RESOURCES BY COMMERCE.

CCXXI. THIS Right (a) is little more than a consequence from what has been already stated with respect to the free navigation of the ocean, and the exceptions which International Law has sanctioned in the case of particular portions of the ocean. The general law as to the perfect liberty of commerce incident to every nation is forcibly and truly stated by Grotius (b): "Quominus gens quæque cum quavis gente seposita commercium colat, impediendi nemini jus est: id "enim permitti interest societatis humanæ ; nec cuiquam "damno id est: nam etiam si cui lucrum speratum, sed non "debitum, decedat, id damni vice reputari non debet."

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The extravagant pretensions of Spain and Portugal to exclusive commerce with the East and West Indies, and their practical abandonment, have been discussed in a former chapter. It is, however, perfectly competent to any nation to make what regulations it pleases with respect to its own commerce, to admit every nation equally to it, to exclude nations from it, to admit some under favourable and others

(a) "Commercium cum Turcis vetitum dicere lege omnes videntur. Et mihi tamen non libet facile discedere a regula certissima Juris Gentium, quod constituit commercia, nec distinguit aliquid de Gentibus." -Albericus Gent. Advoc. Hispan. cc. 25, 26.

Grotius, 1. ii. c. 2, 5.

Martens, 1. iv. c. iii. s. 139.

Klüber, s. 69.

Massé, Le Droit commercial dans ses rapports avec de Droit les Gens et le Droit civil, t. i. 1. ii. tit. i. ch. i. (ed. 1874), p. 95.

(b) L. ii. c. 2, 13, 5.